EB-2 NIW RFE Guide

EB-2 NIW RFE Guide – New York Immigration Lawyer Explains How To Respond And Win

Author: EB2 NIW Attorney Alena Shautsova

Understanding EB-2 NIW RFEs

A Request for Evidence (RFE) is issued by USCIS when they believe a petition may be approvable but lacks sufficient documentation to make a decision. It explicitly outlines what’s missing or unclear, giving you a chance to strengthen your case rather than being outright denied. Very often one would receive it if he/she filed their I 140 petition with premium processing.

Common Triggers for EB-2 NIW RFEs as cited by USCIS officers:

• Insufficient proof of exceptional ability or advanced degree equivalence.
• Weak demonstration of national importance and substantial merit of the proposed endeavor.
• Lack of evidence showing you're well-positioned to advance the endeavor.
• No persuasive argument for why waiving labor certification benefits the U.S., as per the Matter of Dhanasar three-prong test.
• Missing business plans, outdated CVs, or weak recommendation letters.

How to Respond Effectively to an EB-2 NIW RFE

Step-by-Step Strategy:

1. Read the RFE thoroughly—understand exactly what USCIS is asking. It’s not a denial, but a request for clarification or more proof. In fact, this is your chance to improve your submission!
2. Organize your response clearly:
   • Place the original RFE at the top.
   • Follow with a cover letter that addresses each point specifically and politely.
   • Then submit the requested documents, organized and labeled.

   Often, you will be explaining the evidence you already submitted, and the RFE will be accepted and the case would be approved. Do not get discouraged just because you received the RFE and do not abandon your case!

3. Include strong expert opinion letters—these should come from independent, recognized authorities in your field, clearly stating your qualifications and the national importance of your work.
4. Document equivalency, especially for foreign degrees: submit credential evaluations or proof of required experience to match U.S. advanced degrees.
5. Demonstrate fulfillment of Dhanasar's three-prong test:
   • Substantial merit and national importance: use data, statistics, official reports.
   • Well-positioned to advance: include CV, past achievements, ongoing projects, media citations.
   • Benefit of waiver: highlight urgency, job creation potential, or unique contributions.
6. Double-check your deadline—typically between 30 to 90 days. Always follow the date given in your RFE.
7. Submit via the specified return address, using a traceable method. Confirm any non-English documents are certified translations.

Choosing an Immigration Business-Plan Provider

If your EB-2 NIW petition involves a business or entrepreneurial endeavor, a strong business plan can bolster your position—especially under the second and third prongs of Dhanasar.

What to look for in a provider:

• Experience preparing EB-2 NIW–specific business plans.
• Understanding of Dhanasar's three-prong framework.
• Solid track record with documented USCIS approvals, particularly in your field or industry.

Is it worth it?

• A professionally crafted plan can significantly strengthen your case—if the provider is reputable and aligns with USCIS requirements.
• Avoid generic PR or immigration consulting agencies who offer templated plans. They often lack nuance and fail to tie into legal criteria.

PR Agencies: Do They Add Value?

Use with caution.

• PR or marketing agencies may help increase visibility of your work, but they often lack immigration-specific understanding.
• If you choose one, ensure they can produce substantiated narratives that help satisfy Dhanasar’s first prong (i.e., show national importance through media impact or citations).
• Always pair any PR efforts with legal guidance—PR alone won’t carry the application.

Make sure the agency says the truth! It is crucial to be honest. Another important point: you need to make sure that the qualifications for your petition are met at the time of the submission:

Crucial Rule: Qualifications Must Be Established At the Time of Filing

USCIS is strict: you must have had all necessary qualifications—advanced degree or exceptional ability—at the time you filed the I-140 petition. Post-filing achievements cannot be used to cure earlier deficiencies.

In multiple AAO decisions, petitions have been denied strictly because petitioners hadn’t fully met the EB-2 standard by filing. Don’t fall into that trap—ensure all documentation is timely and complete as of filing date.

Real-World Example

In a recent USCIS case, an IT project manager’s EB-2 NIW was denied because the petitioner could not explain the national importance of his project. You have to show the impact the clients have on economy if you are a service provider! https://tinyurl.com/f35592a2

Real USCIS Case: EB-2 NIW Appeal Sustained

• Case ID: FEB082024_09B5203 (The Petitioner, an epidemiologist, seeks second preference immigrant classification as a member of the professions holding an advanced degree or as an individual of exceptional ability, as well as a national interest waiver of the job offer requirement attached to this EB-2 classification)
• Summary: This non-precedent decision by the AAO involved a petitioner initially denied by the Texas Service Center, who failed to establish eligibility as both an advanced-degree professional and as someone meriting a National Interest Waiver (NIW)
• On Appeal:
  • The AAO conducted a de novo review (fresh evaluation).
  • It found that the petitioner did indeed hold a doctoral degree in biomedicine, effectively establishing eligibility for the EB 2 classification
  • Additionally, the proposed endeavor—focused on developing safe and sustainable strategies to control and eliminate neglected infectious diseases—was deemed to meet the Dhanasar three-prong test:
    1. Substantial merit and national importance
    2. Well-positioned to advance the endeavor
    3. Benefit to the U.S. outweighs not requiring a job offer

  As a result, the AAO sustained the appeal and approved the NIW petition

Summary Table: RFE Response Essentials

Final Thoughts

Responding to a USCIS RFE effectively can be the turning point in securing your EB-2 NIW approval. Focus on meeting the Matter of Dhanasar standards with credible and well-timed evidence. Choose service providers judiciously, and always confirm your eligibility criteria are satisfied at the time of filing.

For tailored guidance, feel free to reach out—your peace of mind and successful outcome are close at hand.

Our skilled EB2 NIW attorneys will help with EB2 NIW initial filing, RFE or Motions to reopen and Appeals! Contact: 917-885-2261