What Is An EB-2 NIW Request For Evidence?

The Eb-2 NIW request for evidence refers to the response an immigration officer sends a visa petitioner when the evidence surrounding their application is insufficient. In this particular case, a Request for Evidence (RFE) is intended for a second preference, employment-based national interest waiver (EB-2 NIW) green card applicant.

Ultimately, an RFE is a request for additional information before the officer can fully determine EB-2 NIW eligibility and/or make a final determination. Though receiving an RFE is common among visa applicants, it is important to understand both what is being asked, and how to respond when providing more evidence.

Here, we discuss the main types of Requests for Evidence, and how to respond with sufficient documentary evidence to help strengthen the case.

EB-2 NIW Request For Evidence

The EB-2 NIW visa category does not require foreign applicants to seek and secure a job, and there is no requirement for a U.S.-based sponsoring employer to neither petition on the applicant’s behalf, nor to test the labor market before otherwise obtaining a labor certification. 

An EB-2 NIW petitioner seeks a waiver of this process because he or she believes they are well-positioned to advance their proposed endeavor, that their endeavor has substantial merit and national importance, and that it is in the interest of the United States to do so. Unfortunately, there are occasions where petitioners fail to include enough reliable documentary evidence within their waiver petition, resulting in an RFE.

When a United States Citizenship and Immigration Services (USCIS) officer is processing an EB-2 NIW green card application and finds they do not have sufficient evidence that the petitioner qualifies, he or she will send the petitioner a Notice of Action (Form I-797E). This is the official request for additional evidence, which could range from the petitioner’s educational background to how their contributions benefit the U.S. in such a way that the labor certification should be waived.

According to the USCIS policy manual regarding evidence, an RFE will contain all of the following elements:

• The eligibility requirement(s) that hasn’t been established
  • Along with the reason the evidence submitted is deemed insufficient
• The piece(s) of evidence that are missing, based on the statute, regulation or form
• An example(s) of evidence which may be establish eligibility that can be provided
• An official request for such evidence(s)
• The date by which the response is due (response deadline)

Essentially, the officer will indicate the information they need before they can proceed in fully evaluating the case.

Some situations may necessitate an interview with the applicant when he or she submits additional evidence that has been determined to be insufficient. Approval of an EB-2 NIW not only requires the attendance of the interview, but complete and adequate evidence. For the sake of potentially becoming an EB-2 NIW green card holder (lawful, permanent U.S. resident), it is extremely important to submit a response packet addressing each component.

Request For Evidence Types, and How To Respond

There are quite a few reasons an NIW RFE can be served to an NIW applicant, though the reasons are not infinite. Here are several different common types RFEs, and what the petitioner should include in their response(s):

• Clarification needed of the petitioner’s field of expertise, or proposed endeavor
  • The petitioner must simply clarify their field of expertise and/or their proposed endeavor in greater detail, remaining mindful that their explanation should strengthen their case as to why it necessitates a national interest waiver

• Insufficient evidence of how the petitioner’s work has and/or will impact their field of expertise
  • The petitioner must provide substantial evidence of how the work they have done in their field of expertise has previously impacted their field in a positive manner, or 
  • Provide substantial exemplification of how their professional contribution(s) will positively impact their field of expertise

• Insufficient evidential substantiation that the petitioner’s proposed endeavor is of national importance
  • The petitioner should demonstrate through objective evidence that as a highly-qualified professional, their exceptional skills and/or abilities extend beyond the scope of their field of expertise, and how their accomplishment(s) are of great importance to the U.S. as a whole — either by improving the nation’s economy, environment, educational programs, health care, affordable housing, wages and working conditions of U.S. workers, etc.

• Insufficient evidence that the petitioner’s work would be beneficial to the nation’s interest, especially more so than that of a U.S. worker
  • The petitioner should provide evidence of the following:
    • Their involvement is critical to a given ongoing project and that it would otherwise fail without their contribution(s)
    • The progress of a specific scientific advancement would be blocked without their involvement and physical presence inside the country
    • A goal on a national level will be compromised without their involvement and physical presence inside the country

• Poorly-argued petition letter
  • The petitioner’s response should contain persuasive language as they demonstrate how their exceptional ability, unique skill, educational background, or professional experience sets them apart from their professional counterparts
  • Using considerable detail in their response, the petitioner should further exemplify why their work has substantial intrinsic merit, how they are well-positioned to advance their proposed endeavor, and why they are worthy of a national interest waiver
• Other requests for specific evidence
  • The petitioner will simply need to provide documentary evidence the RFE straightforwardly requests
  • This may entail a basic detail, an essential document, evidence of past achievement(s), or could even include something as simple as a passport copy, etc.

Each case differs from the next, so an RFE response must relate specifically to the foreign national and their NIW petition. In addition, it is crucial to provide letters of recommendations from authorities, field experts or objective third parties that illustrate such positive national impact the petitioner’s contribution(s) would most likely have. We have an article discussing how to write the recommendation letter.

EB-2 NIW Request For Evidence Response Types

An RFE varies by case, therefore the evidence requested depends on the foreign national and their specific petition intricacies. Additionally, there are two different methods the petitioner can use when responding to an RFE. They are as follows:

1. Fully respond by providing all of the evidence requested in the RFE, and more when it is apropos
2. Partially respond by providing what evidence is available, as limited as it may be

Otherwise, if the petitioner either has none of the evidence requested, or only a negligible amount, he or she may see the need to withdraw their petition altogether. As this is an extreme measure, it may be in the petitioner’s best interest to simply submit what basic evidence they do have.

Providing Evidence for an EB-2 NIW Request For Evidence

It is important to first understand that an RFE is not a Notice of Intent to Deny (NOID). It is simply a notice sent by a USCIS officer requesting further examples, documentation or other clarification(s). Though both are serious, it is important for respondents to remain as calm as possible, so they can respond to their RFE clearly and satisfactorily. 

Responding to an RFE takes meticulous attention by the petitioner or their representative. Therefore, it is crucial to follow the steps for providing additional EB-2 NIW evidence, which are outlined below.

1. Read the RFE notice sent by the USCIS officer, re-reading it as many times as it takes to fully grasp what the officer is requesting
2. Create a checklist of documentary evidence or other information being requested
3. Gather all evidence, carefully arranging them based on how the RFE is outlined
4. Draft the response(s) in the form of a cover letter

Within the personal statement (cover letter), the petitioner must prove that he or she satisfies all of the Matter of Dhanasar three-pronged test requirements, which are reiterated here:

• The person’s proposed endeavor has both substantial merit and national importance;
• The person is well positioned to advance the proposed endeavor; and
• It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

Once each component of the RFE is addressed, the response packet should be finalized by placing the original RFE first, a cover letter second and finally the requested documents.

For further processing of an EB-2 NIW petition, it is important to respond to an RFE within the standard timeframe, which is generally 84 calendar days. However, the deadline is always indicated in the RFE sent by the USCIS. Responses must be received by the USCIS by that date.

Frequently Asked Questions about the EB-2 NIW RFE

Conclusion For The EB-2 NIW Request For Evidence

To conclude, responding to an EB-2 NIW RFE is an important process that requires careful attention to detail and thorough preparation. Petitioners must address each point raised by the USCIS officer with comprehensive evidence and persuasive arguments.

By providing a well-structured response that clearly demonstrates how they meet the Matter of Dhanasar criteria, applicants can significantly strengthen their case for a national interest waiver. It is imperative to submit the response within the specified timeframe, typically 84 calendar days, to ensure continued processing of the petition.

Ultimately, a meticulously prepared RFE response can be the key to overcoming initial doubts and securing approval for an EB-2 NIW green card, allowing highly skilled individuals to contribute their expertise to the national interest of the United States.