近期NIW各类RFE案例及分析
刘宗坤律师 白凯玲律师
近几个月，移民局就NIW申请案发放的RFE（Request for Evidence）数量明显增加，尤
以TSC（Texas Service Center）为甚。TSC的RFE集中由58号，66号及75号等几位移民
官发放。我们注意到，三位大量发放RFE的移民官特点不同。比如，58号移民官会问及
一些十分具体，但缺少法律意义或科学常识的问题，而66号和75号移民官则发放内容相
同的模版RFE。
尽管从法律上讲，本所收到的大部分RFE没有道理，但是按照移民局的要求，申请人仍
然必须按时回复。不过，回复RFE后的结果还算令人满意。在本所2007年已经回复的NIW
申请的RFE中，已经结案的全部获得批准。另外有些申请案，在回复RFE后，仍然在等待
审理。移民局收到RFE答复后，审理时间从一个星期到两三个月不等。
对于如何回复RFE，笔者在以前的文章中有过论述。读者可参阅“有关I-140 RFE的一组
问与答”（见http://www.niwus.com/art071102.html）、“如何回复RFE中的错误要求? ”（见http://www.niwus.com/art0023.html）， 以及“移民申请的举证标准及RFE问题”（见http://www.niwus.com/art0022.html）。
纵观移民局的RFE，不外有三类：第一类是模版（generic）RFE。这类RFE内容空洞，往
往要求申请人提供证据，证明每一项应该证明的东西，似乎申请人什么证据都没有提交
过一样。移民局曾经专门发布备忘录禁止移民官发放这类RFE。但移民局有令不行，某
些移民官照发不误。第二类是要求具体证据（specific evidence）的RFE。这类RFE要
求申请人提供具体的证据，比如说申请人的文章引用记录等。不过，在很多情况下，移
民官因不了解申请人的专业情况或对相关法律不熟悉，会提出一些缺少科学常识或在法
律上没有意义的问题。第三类是混合（hybrid）RFE。这类RFE是前两种RFE的混合体，
既提出一些空洞的要求，又提出一些具体的问题。
本文从本所近几个月处理过的RFE中选出几件有代表性的案例，以供读者进一步参考。
前述三类RFE在下面的案例中均有所体现。这些案例中，有相当一部分是申请人自己向
移民局提出申请，在收到RFE后，开始正式聘请我所律师代理申请。
Case No. 1：
Case Type: Eb-2 NIW
Field of Research: Biochemistry
Major Credentials:
PhD from a Chinese university
Published 7 Chinese and English journal papers
Citations: None
Current position: Postdoctoral Fellow at a US university
Filing Date: March 11, 2007
Filing Center: TSC
RFE Date: August 29, 2007
RFE Response Date: November 9, 2007
Approval Date: November 23, 2007
This is a generic RFE requesting for evidence to prove each of the three
prongs for National Interest Waiver as set by AAO in In Re New York State
Department of Transportation. In response to the RFE, we submitted three (3)
letters of recommendation from independent experts. In the Response
Memorandum, we addressed each issue raised in the RFE drawing from the
expert testimonies, and argued that the Petitioner/Beneficiary has met the
requirements of each prong. To support our arguments, we provide favorable
AAO decisions that are comparable to the facts in our client’s case. The
case was approved within two (2) weeks after the RFE response was received
by CIS.
Case No. 2:
Case Type: Eb-2 NIW
Field of Research: Organic Chemistry
Major Credentials:
PhD from a US university
Published 10 Chinese and English journal papers
Citations: approximately 20
Current position: Postdoctoral Fellow at a US university
Filing Date: April 23, 2007
Filing Center: TSC
RFE Date: October 15, 2007
RFE Response Date: December 12, 2007
Approval Date: December 19, 2007
This is a hybrid RFE. In addition to requests for evidence to prove that the
national interest would be adversely affected if labor certification were
required, the RFE also asked a number of questions that were scientifically
insignificant and legally irrelevant. In response to the RFE, we submitted
three (3) advisory opinion letters from independent references and other
independent evidence such as the Petitioner/Beneficiary’s updated citation
record.
In the Response Memorandum, we pointed to the fact that our client’s work
has been cited worldwide by independent resources. We also provided AAO
decisions regarding the legal significance of independent citations in peer-
reviewed publications. We further analyzed the legal threshold for each
prong and argued that the evidence submitted abundantly indicated that the U
.S. national interest would be adversely affected if labor certification
were required in our client’s case. The case was approved within one (1)
week after the RFE response was received by CIS.
Case No. 3:
Case Type: Eb-2 NIW
Field of Research: Pharmaceutical Science
Major Credentials:
PhD from a US university
Published 6 English journal papers
Citations: approximately 25
Current position: Postdoctoral Fellow at a US university
Filing Date: July 24, 2006
Filing Center: NSC
RFE Date: June 13, 2007
RFE Response Date: August 29, 2007
Approval Date: December 6, 2007
This RFE requests for additional evidence to prove that as of the priority
date the Petitioner/Beneficiary had a degree of influence on the field that
distinguished him from other researchers with comparable academic and
professional qualifications. In response to the RFE, we submitted three (3)
independent advisory opinion letters from leading experts in pharmaceutical
science and the Petitioner/Beneficiary’s updated citations record. We also
presented an AAO decision that specifically addressed the issue of citations
in NIW petition. In the Response Memorandum, we analyzed the legal
significance of independent citations as found in the AAO decision, and
argued that our client’s citation record with 25 worldwide citations has
proved his widespread and lasting influence on his field. The case was
approved in fourteen (14) weeks after the RFE response was received by CIS.
Case No. 4:
Case Type: Eb-2 NIW
Field of Research: Analytical Chemistry
Major Credentials:
MS from a US university
Published 4 English journal papers
Citations: approximately 20
Current position: Ph.D. student at a US university
Filing Date: March 9, 2007
Filing Center: TSC
RFE Date: August 10, 2007
RFE Response Date: October 19, 2007
Approval Date: November 15, 2007
This RFE requests for additional evidence to prove that the national
interest would be adversely affected if an employer were to pursue the
normal labor certification process. The RFE does not request for specific
evidence. In response to the RFE, we submitted two (2) independent advisory
opinion letters from leading experts in analytical chemistry and the
Petitioner/Beneficiary’s updated citations record. In the Response
Memorandum, we pointed to the fact that a number of scientists in different
countries had used our client’s findings as the basis of their own research
. We further argued that our client’s prior achievements indicated that he
not only would serve the national interest to a substantially greater degree
than would an available U.S. worker having the same minimum qualifications,
but would also make a greater impact than other highly qualified,
experienced, and skilled researchers in his field. Therefore a waiver of
labor certification was justified. The case was approved within four (4)
weeks after the RFE response was received by CIS.
Case No. 5:
Case Type: Eb-2 NIW
Field of Research: Pharmacology
Major Credentials:
Ph.D. from a Chinese university
Published 6 Chinese and English journal papers
Citations: None
Current position: Research Fellow at a US university
Filing Date: April 9, 2007
Filing Center: TSC
RFE Date: August 27, 2007
RFE Response Date: November 2, 2007
Approval Date: November 21, 2007
This is a typical generic RFE requesting for additional evidence to prove
the three prongs for National Interest Waiver (intrinsic merit, national in
scope, and justification for waiver of labor certification). In response to
the RFE, we submitted four (4) independent advisory opinion letters from
experts in pharmacology, testifying the scientific significance of our
client’s contributions and how his specific prior achievements as of the
priority date had set him apart from his peers. We further submitted two AAO
decisions finding that third-party letters should be considered as
independent evidence that is valuable as a means to determine whether the
Petitioner/Beneficiary’s work has attracted significant attention in the
scientific community. In the Response Memorandum, we analyzed the legal
significance and relevance of the AAO decisions to our client’s case, and
argued that the evidence submitted justifies a waiver of labor certification
. The case was approved within three (3) weeks after the RFE response was
received by CIS.
Case No. 6：
Case Type: Eb-2 NIW
Field of Research: Nanotechnology
Major Credentials:
PhD from a US university
Published 9 Chinese and English journal papers
Citations: None
Current position: Postdoctoral Fellow at a US university
Filing Date: January 16, 2007
Filing Center: TSC
RFE Date: August 27, 2007
RFE Response Date: November 1, 2007
Approval Date: November 15, 2007
This is another generic RFE requesting for evidence to prove each of the
three prongs for National Interest Waiver. In response to the RFE, we
submitted five (5) letters of recommendation from independent experts who
had never worked with the Petitioner/Beneficiary but were familiar with his
research through his publications. We also submitted evidence to show that
our client’s work had been highlighted in printed media as well as on
websites. In the Response Memorandum, we quoted previous AAO decisions and
argued, among other things, that while the evidence of record does not
present the strongest possible case, the documentation on balance was
sufficient to warrant approval of the national interest waiver. The case was
approved within two (2) weeks after the RFE response was received by CIS.
Case No. 7:
Case Type: Eb-2 NIW
Field of Research: Chemical Biology
Major Credentials:
PhD from a US university
Published 8 journal & conference papers
Citations: None
Current position: Postdoctoral Fellow at a US university
Filing Date: April 10, 2007
Filing Center: TSC
RFE Date: August 27, 2007
RFE Response Date: November 2, 2007
Approval Date: November 15, 2007
This RFE requests for specific evidence including the Petitioner/Beneficiary
’s citation record to prove that his prior achievements had a degree of
influence that justified the projection of future benefits to the national
interest. In response to the RFE, we submitted two (2) independent advisory
opinion letters testifying how our client’s original findings had
influenced the field of his expertise as a whole. We further presented
favorable AAO decisions and argued that although lacking documentation of
heavy citation of our client’s published work, the evidence in its entirety
provides ample basis for grant of national interest waiver. The case was
approved in two (2) weeks after the RFE response was received by CIS.
Case No. 8:
Case Type: Eb-2 NIW
Field of Research: Medicinal Chemistry
Major Credentials:
Ph.D. from a US university
Published 3 English journal papers
Citations: 23
Current position: Research Fellow at a US university
Filing Date: December 4, 2006
Filing Center: TSC
RFE Date: August 30, 2007
RFE Response Date: October 16, 2007
Approval Date: October 29, 2007
This is a hybrid RFE. In addition to requesting for additional evidence to
prove the third prong for National Interest Waiver, the RFE also gave a
number of specific questions seemingly related to the Petitioner/Beneficiary
’s work. Most of the questions, however, are legally irrelevant or
scientifically insignificant to the petition. In response to the RFE, we
submitted two (2) independent advisory opinion letters from experts who had
submitted letters to support the original petition. In the letters, the
experts restated their strong support and discussed some of the issued
raised in the RFE. We also submitted AAO decisions addressing the legal
significance of independent citations in NIW petition. In the Response
Memorandum, we argued, among other things, that our client’s citation
record and the strong testimonies from independent experts convincingly
proved that he will contribute to the national interest to the substantially
higher degree than the majority of his peers. The case was approved within
two (2) weeks after the RFE response was received by CIS.
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刘宗坤律师（Z. Zac Liu, Esq.），法学博士（J.D., Valparaiso University School
of Law）、哲学博士(Ph.D., Peking University)，伊利诺伊州最高法院及联邦法院
执照，曾担任Valparaiso University Law Review的编辑和审稿人， 著有中英文书籍
多种，散见于中美各大学图书馆。执业以来，他已代理无数名来自世界各地的科研人员
和专业人士成功获得绿卡及各类非移民签证，尤其在国家利益豁免（NIW）、特殊人才
（Eb-1A）、杰出教授和研究员（EB-1B）、PERM 劳工证、H-1B工作签证等方面积累了
丰富的经验。读者若有移民法律问题，可将简历发往zliu@niwus.com。刘律师会在两个
工作日内对您的问题做出免费答复或评估。
白凯玲律师 (Kellie Pai, Esq.)，法学博士(J.D.，University of Houston Law
Center)、文学学士(B.A., University of Texas at Austin),德克萨斯州最高法院执
照，刘宗坤联合律师事务所专业移民律师。
Liu & Associates, PLLC
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6161 Savoy Drive, Suite 830
Houston, Texas 77036
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