How to Respond to an Unreasonable RFE or NOID: Our Recent Experience for an EB1-EA case

Victoria Chen, J.D., Esq.

We at Chen Immigration Law Associates always appreciate the hard work of most immigration officers who review cases in a timely and accurate manner. Because of the correct determination of immigration officers, more than 95% of our EB1 cases filed are approved by the USCIS. Although Ombudsman has expressed its concern regarding the inconsistent decisions of EB1-EA (Aliens of Extraordinary Ability) cases after Kazarian v. USCIS, our EB1-EA cases filed in February with the request of premium processing have all been approved, with the approval rate of 100%.

Among these approved EB1-EA (Aliens of Extraordinary Ability) cases, most of them were approved without RFE while one of the strong cases received NOID (Notice of Intent to Deny). I therefore would like to take the chance to share this experience with my blog readers.

This client had received a NOID letter a year earlier in his previous filing handled by another attorney yet now had a solid case for EB1-EA approval. He was a neuroscientist with over 20 years of experience in the field of endeavor, and had authored over 20 publications. In addition, the client had been published in an national newspaper as well as a nationally-recognized non-profit neurological research foundation. The client had also served as a reoccurring peer-reviewer for several prestigious trade publications. Accordingly, we claimed five criteria overall, and included within the petition evidence of the petitioner’s reception of a lesser-nationally recognized award, his participation as a judge of the work of others, the major media material published about the petitioner and his work, the petitioner’s scholarly articles which appeared in internationally-circulated trade publications, and evidence of the petitioner’s original contributions of major significance within the field of endeavor.

With respect to the client’s request, we filed the petition using the premium processing (PP) service, which requires the petitioner to pay an extra $1,225 for the petition to be processed within 15 calendar days from petition package’s receipt by the USCIS. Moreover, on the last day of this time period expired, a NOID letter was issued, which was received by us and the client almost ONE WEEK later.

However, after a brief review of the letter, it became apparent that the immigration officer had copied and pasted the majority of the previous NOID letter, and hastily pulled a quote from one of the reference letters, which was clearly unrepresentative of the referrer’s material claims regarding the merit and contributions of the petitioner. Despite our immediate frustration and disappointment upon these realizations, we began to prepare a response letter to address the criticisms presented in the NOID, while also politely introducing our “concern” for the similarities between the two letters and the evident material errors made by the immigration officer. As we at Chen Immigration Law Associates always work efficiently, a 30 page double space long response was drafted for the client’s review within two days after we received the physical NOID letter.

In the response, we first express our concern regarding the obvious errors in the NOID letter. The obvious errors spanned from quantitative misnomers in regards to the number of articles the petitioner authored to qualitative presumptions made as a result of either a hurried review or complete disregard of the evidence presented in the petition package. On either account, the irrational nature of the letter was clear from the beginning, and our objective was to craft a response letter in a respectful yet assertive manner.

While these two tones may seem incompatible, they are highly related and both equally important when responding to unreasonable requests made by immigration officers. First and foremost, think about how a typical person may react when confronted in an impolite or even remotely-hostile manner. This type of confrontation or tone within a letter may even cause the immigration officer to act in a further and heightened illogical manner, leading to a denial decision, or even worse, a resultant negative note within the Service Center or USCIS in regards to the petitioner and/or attorney. Therefore, it is essential to remain focused on repeatedly using language such as “with the utmost respect,” or “we politely submit,” whenever responding to seemingly unreasonable requests.

Nevertheless, it is equally important to remain assertive, while making material claims using these respectful languages. By appearing “submissive” and disguising any emotional frustrations regarding the unreasonable requests with the aforementioned languages, one may remain focused on assertively combatting the material claims made within the RFE or NOID. Examples are provided below for enhanced clarification:

To address the similarity between the two NOID letters, we used the following language:

· “In addition to our concern for the material inconsistencies within the most recent NOID letter, portraying a weaker and inaccurate case of [INFORMATION REDACTED] expertise and contributions, we are likewise apprehensive regarding the similarities presented in both of the NOID letters received from [INFORMATION REDACTED] previous and most recent filing, received on XX, and XX, respectively…The two letters are almost identical, with the sole exceptions resting within the fourth paragraph of analysis on the fifth page and the quotation derived from [INFORMATION REDACTED] following the third paragraph.”

To address the apparent inconsistencies between the material facts presented in the original petition letter and those made by the immigration officer, we used the following language:

· “In the NOID, it indicates that [INFORMATION REDACTED] “has shown that he co-authored eight journal articles,” while in fact the most current petition package submitted on [INFORMATION REDACTED], demonstrates that [INFORMATION REDACTED] has co-authored four journal articles in addition to his 17 first-authored journal articles, first-authored book (from which he received a major award), and two first-authored book chapters…With the acquaintance of these facts, available and presented at the time of filing, [INFORMATION REDACTED] case is substantially bolstered, and his superior expertise is reflected through such documentary evidence.”

· “Moreover, while we agree with the fact that this quotation does not assert or confirm that [INFORMATION REDACTED] we disagree with the representative nature of this quotation, as it was provided in the summary paragraphs in both the cover letter and [INFORMATION REDACTED] reference letter submitted on [INFORMATION REDACTED] and similarly in the previous petition package filed on [INFORMATION REDACTED].

One will note that, in addition to using respectful language, we kept our clauses clear and concise, while focusing on making statements and assertions supported by specific facts and readily available documentary evidence. This gives the immigration officer absolutely no opportunities for response or criticisms.

And finally, a useful strategy we at Chen Immigration Law Associates have always employed involved a formatting adaptation; we addressed all of our frustrations and the fallacies made by the immigration officer within an outlined introduction – touching on each point of error, respectfully clarifying the material assertions with statements of facts, and stating the implications of this new enlightenment. This way, the remainder of the letter could be fixated on refining and restating the petitioner’s qualifications as included in the original petition letter, rather than repeating our irritations toward the unwarranted statements and unreasonable request.

Likewise, it is always wise to seize the opportunity provided in any situation. In other words, when an immigration officer presents you with an unreasonable request – “make lemonade” – and use this chance to provide any new evidence or clarification which might bring about a strengthened prospect for approval. And although some evidence may be inadmissible as it was not available at the time of the original petition, other evidence, such as an increased citation record, may be utilized to simply show the sustained or growing acclaim of an expert or their pertinent work in the field of endeavor. For instance, we provided a side-by-side chart showing the citation record for each publication at the time the petition was field compared with the updated citation record at the time the response letter to the NOID was drafted.

Ultimately, as we at Chen Immigration Law always remind our clients, the burden of proof completely rests with the petitioner. However, the standard of proof differs from this burden and both the petitioner and adjudicator are responsible for adhering to the principle. This standard of proof is known as the “preponderance of evidence” standard. According to a 2006 USCIS Interoffice Memorandum:

“The standard of proof applied in most administrative immigration proceedings is the “preponderance of the evidence” standard. Thus, even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof. See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring). If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition.”

Therefore, if the petitioner can provide evidence attesting to the truth of some assertion, the immigration officer must accept this evidence if the evidence is “relevant, probative, and credible,” and would lead any reasonable person to the conclusion that the assertion is most likely true. As such, a material claim made in a reference letter by a credible source must be taken at face value, assuming there is no logical reason to doubt the statement. In like manner, any assertion made by the immigration officer in response to a piece of credible evidence, which calls into question a piece of evidence, or even a missing piece of evidence, is groundless if the appropriate evidence was provided within the original petition, yet was simply misinterpreted or unacknowledged by the immigration officer.

THE BOTTOM LINE: Focus on the material evidence of the case, and continuously use polite and neutral language demonstrating the respect for the immigration officer’s discretion, while addressing each concern with the assertion of facts supported with documentary evidence.

*The above case was, upon which this article is based, our response to the NOID was received by the USCIS on April 5, 2012, and the case was approved on April 13, 2012.

*We at Chen Immigration Law Associates guaranteed this EB1-EA case approval and once again kept our guarantee promise.

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

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