What Triggers RFE (Request for Further Evidence) for I-140 EB1-A Alien of Extraordinary Ability?

by Victoria Chen, Esq., J.D.

Lately, the USCIS has been issuing more RFE (Request for Further Evidence) for Petitioners of EB-1 alien of extraordinary ability status. This article intends to explain what triggers RFE of EB1A petition.

Basically, the USCIS Immigration Service Officers issue an RFE when they see an EB-1 petition is deficient in evidentiary support. An RFE usually means that additional evidence is needed to help support and clarify existing documents presented in the EB-1 petition.

We at Chen Immigration Law Associates always reminds our clients that the USCIS does not only look at the evidence quantitatively, but qualitatively.

Let’s go over some examples of what triggers an RFE are examined by looking at the criteria for an EB-1 application

1. “Documentation of the beneficiary’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor”

An RFE may be issued if the prize appears locally recognized instead of internationally or nationally recognized. Additionally, if the beneficiary is working as an electrical engineer, for example, but he happened to write an award winning children’s book, the award for the children’s book would not relate to the beneficiary’s field of expertise, “electrical engineering” and therefore the applicant may receive an RFE if they use that award to support their application for EB-1 status. An RFE will be issued when evidence is not present or relevant to the petitioner’s field of endeavor.

2. “Documentation of the beneficiary’s membership in associations in the field for which classification is sought.” The association must require outstanding achievements of their members as judged by recognized national or international experts in their disciplines or fields”

An RFE may be issued if evidence does not show that the association requires “outstanding achievements.” Additionally, if the association grants membership without looking at a person’s extraordinary ability in that field, or if the association is unrelated to the beneficiary’s field of expertise an RFE may be sent to the petitioner.

3. “Published material about the beneficiary in professional or major trade publications or other major media”

The materials must relate to the beneficiary’s work in the field for which classification is sought. An RFE may be issued if evidence does not support the publications as being professional or major trade publications. If the evidence does not prove that the publications are about the beneficiary’s work in the field of expertise then an RFE notice may be sent to the applicant.

4. “Evidence of the beneficiary’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization for which classification is sought”

An RFE may be sent to the petitioner if the evidence only shows an invitation to judge the work of others. Evidence that the beneficiary actually judged the work of others is required. As discussed above, it is important that the beneficiary provide evidence supporting their field of endeavor and demonstrating that the contributions to the field are of major importance. An RFE may be issued if a beneficiary has judged the work of others that appear to be in a field unrelated to the beneficiary’s field of expertise. The petitioner upon receiving the RFE should submit evidence such as information about the editorial board that they serve on, or emails or letters that signify that the beneficiary has reviewed manuscripts for prestigious journals.

5. “Evidence submitted to show the beneficiary’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field”

An RFE may be issued if the evidence does not prove that the beneficiary has made a major contribution to his field of expertise. An example of evidence that would help strengthen an EB-1 application and avoid receiving an RFE would be to provide evidence such as letters of recommendation and testimony from people in the beneficiary’s field of expertise. It strengthens the application if some of these letters of recommendation are from people who do not know the beneficiary personally, because then it shows that the beneficiary’s work has reached and inspired people beyond those of his personal circle.

6. “Evidence of the beneficiary’s authorship of scholarly articles in the field, in professional or major trade publications or other major media”

An RFE may be issued if the evidence is incomplete. Also, if the evidence does not show the prestige or scholarly nature of the articles, or if the articles have not been published. Some ways to strengthen an EB-1 application and avoid receiving an RFE would be to provide citation search reports from Google Scholar of Scopus of the applicant’s published works and copies of the published papers and information about the prestige of the journals.

7. “Evidence of the display of the beneficiary’s work in the field at artistic exhibitions or showcases”

An RFE may be issued if the evidence does not demonstrate that the work is that of the beneficiary or if the work was not displayed in an artistic showcase. It is important to provide evidence such as sales records of the beneficiary’s sold artistic works, or evidence such as marketing materials that promote the beneficiary’s work in order to strengthen an application that has received an RFE.

8. “Evidence that the beneficiary has performed in a leading or critical role for organizations or establishments that have a distinguished reputation”

An RFE may be issued if evidence does not support that the beneficiary performed a leading or critical role, or if the organizations or establishments do not have a distinguished reputation. The petitioner must provide additional evidence such as letters of reference that explain how the beneficiary was either a leading or critical role for the organization or establishment.

9. “Evidence that the beneficiary has commanded a high salary or other significantly high remuneration for services, in relation to others in the field”

An RFE may be issued if the evidence does not show that the beneficiary’s salary is as high or higher than others in the same field of work. Evidence that could be submitted in response to the RFE may include a survey that shows salary histories for that position, as well as copies of the beneficiary’s W-2 and 1099 forms for the time period in which the beneficiary has received a high salary.

10. “Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales”

An RFE may be issued if the evidence does not show that the beneficiary has had commercial success. Commercial success is measured by the beneficiary’s relative success to others in the field, and from box office sales and receipts. For example, if a beneficiary has made many musical recordings, but those recordings are not proven to be commercially successful an RFE may be issued.

A petitioner may also submit comparable evidence to the USCIS. This evidence must establish that the “regulatory criteria do not readily apply to the beneficiary’s occupation.” The evidence must explain why the “regulatory criteria” are not appropriate to the applicant’s application and show how the evidence is comparable to the regulated criteria. An RFE may be issued if the USCIS does not feel that the evidence is comparable.

An example of someone that may apply for regulatory criteria is a person who has had commercial success in the arts (such as an author), but who is not a performing artist.

Finally, a few other ways to avoid an RFE are to get certified English translations of all pertinent documents such as birth certificates and major publications.

As seen above, there are many triggers that can result in an RFE notice. However, We at Chen Immigration Law Associates are always proactive about making sure that all areas are covered and that anything claimed in the petition letter is backed up with the appropriate evidence.

EB1A has a high standard of law and has been one of the most difficult employment-based categories to obtain approval. You need a professional and hard-working attorney to work on your EB1A petition. Contact Chen Immigration Law Associates today for a free evaluation.

from Chen Immigration Law Associates

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