EB1 Success In Handling Approvals, RFEs, and Denials

As a law firm specializing primarily in EB1 Aliens of Extraordinary Ability green card cases for over 15 years now, we are accustomed to enjoying a tremendous amount of success. We’ve helped literally thousands of families realize their American Dream. Nevertheless, although we take great pride in our achievements, the practice of immigration law is never easy. Along the way, we have worked with our clients and helped them through the many challenges that can occur when we get Requests for Further Evidence (RFEs) or even an initial denial on the way to an ultimate approval.

We also get requests from other law firms across the country to share our insights and thoughts on how we overcome the challenges we face in the practice of EB1 immigration and how we work with our clients in these areas. We also seek out advice from colleagues in other law firms too. Similarly, it’s not unusual for medical professionals to confer with their colleagues just to make sure they are not missing anything.

So, the purpose of this article is to outline for those EB1 potential clients, current clients, and colleagues to give them a deeper understanding of how the practice of EB1 immigration really works. I hope you find this outline insightful.

Let’s Start with EB1 Approvals

Our goal is to win every case we take on. Winning is everything to us. Clients have put their trust in us and paid us a lot of money so that we can prepare the best possible case so they have the best chances of success.   So, when we take on a case, we take it on with the utmost determination to win each and every case. Truth is, no lawyer can actually guarantee that they will win the case; the best they can do is that they will use all of the many years of experience, expertise, and focus to win that case, but it’s never a guarantee since ultimately the final decision rests with U.S. Immigration, not the lawyer. What clients are buying when they hire their lawyer is that lawyer’s skill set, and this will vary widely from lawyer to lawyer. Incidentally, the skill set of the U.S. Immigration adjudicators will also vary widely, from fair and honest to completely biased and absurd. So, this is the environment you will be working in.

Why Experience Matters

When you hire a highly experienced immigration lawyer, what you are buying is the knowledge and skills that have been honed after many years. The more experienced the lawyer, most likely the more expensive that lawyer will be because you’re buying that lawyer’s level of expertise. So, when you’re shopping for a lawyer on price, you may find a direct correlation between experience and price. So, do not shop for the cheapest lawyer to determine your future in America; hire the best lawyer. I do not believe you can get the best lawyer at the lowest price; the two are mutually exclusive.

A highly qualified specialist will simply have the know-how to not only prepare your case extremely well, should the case go before a difficult U.S. Immigration adjudicator and run into difficulties, that lawyer would have the experience from past challenges to know exactly what to do next to overcome these challenges and go on to win your case. By the way, I do not want an inexperienced and cheap mechanic fixing the brakes on my car, would you?

What is a Request for Further Evidence (RFE)?

Requests for Further Evidence (RFE) are never fun, but they can certainly be overcome. We have the experience to overcome RFEs whenever they pop up, and we see them as just another step along the way to ultimate success.

Once we submit a case for adjudication, if the officer has any questions or concerns about the case, he/she will respond with a letter that is called a Request for Further Evidence. An RFE is basically a request for additional evidence to be submitted on any particular aspect of the case where the officer is unsure.  So, let’s discuss this.

The first thing to point out is that no matter how good your case is, even if you have won the Nobel Peace Prize or an Oscar, your case can still get RFE’d. As I stated earlier, USCIS has a very wide range of adjudicating officers; some are experienced, and some are not, and as a result, there will always be considerable inconsistencies in how the law pertaining to EB1 cases is interpreted and applied by the various officers. So, it’s important to appreciate that RFEs, whilst they are extremely annoying, cannot be avoided all of the time. An RFE is always possible, no matter how strong your case is. You cannot put a percentage on whether or not you’re likely to get an RFE because there are simply too many unknown variables at play.

The second issue to outline is the fact that no two immigration officers will review the case the same case the same way, again, due to the varying degrees of experience and other human factors like subjectivity and bias. So, one officer might love your case and approve it right there and then, whilst another officer might hate the exact same case and issue an RFE. Again, we have many clients ask question like “what are my chances”, so I have to keep reminding them that adjudicating cases is not Math, it’s an entirely subjective environment, especially when it comes EB1 and O1 adjudicating officers where each officer is trying to determine if an alien is really “extraordinary” without any definitive measure as to what extraordinary is.

What we can do as highly experienced EB1 immigration lawyers is to use our experience to preempt as far as possible what the likely triggers might be that could cause an RFE based on having submitted thousands of EB1 cases and then craft each new case accordingly to minimize the chances of getting an RFE, but it’s not a science. You simply do not know which officer you’re going to get and what that particular officer’s personal preferences might be; you cannot cover them all, so you focus on the law.

Analyzing an RFE

When we get an RFE, we can handle it in a variety of ways depending on how the particular RFE has been worded. The first and most important key is to simply stay calm. For example, let’s say you go to your doctor for a checkup and the doctor discovers an issue.  How do you want that doctor to react? Do you want the doctor to be emotional and upset, or do you want that doctor to be outwardly calm and collected and strategic as to how they propose to resolve the issue? As lawyers, internally, we do get quite upset that the officer has not simply approved our case, after all, we would have put so much effort in crafting the best case possible, only to have an officer try to pick it to pieces. Nevertheless, the first requirement is that we stay calm.

The second task is to carefully read the precise wording of the RFE. This step requires trying to determine several points:

A: Has the officer simply not understood the evidence presented?

B: Has the officer simply not read the evidence?

C: Has the officer completely drawn erroneous conclusions?

D: Has the officer followed the law, or is the officer inventing new ones?

In addition, you have to consider issues like:

A: Do you get the feeling from the wording of the RFE that the officer simply has no intention of granting this case no matter what?

B: Do you get the sense that the officer overall is quite fair-minded but tripped on a minor issue or two that can be easily cleared up?

So, when we get an RFE we have to calmly go through these issues, discuss them as colleagues and then write up an RFE analysis that we can present to our client as to what we think the issues are and how they should be addressed. We then discuss analysis with the client, get their take and move forward accordingly. This is never fun, but it’s just part of the job.

Responding to an RFE

Under this Administration, we have seen a marked increase in the number of RFEs. However, having worked under the last three Administrations, we’ve always seen a steady increase in the number of RFEs as the adjudicating protocols are constantly being modified, and so we have to move with USCIS.

If the officer has requested further evidence on each and every category, then we’d take that as the officer being very hostile to the case as a whole, and frankly, we’d be wasting our time responding. In other words, what are the chances of that officer admitting they were wrong on every category and amenable to being told so? My view is slim to none. So, in such cases, I’d simply withdraw and re-file the case. Before re-filing, we would again review the case, and if we still felt we had a very strong case, we’d re-file the case as is and hope for a better outcome or we might make some further enhancements before re-filing. In many instances, just doing that will often end up in an Approval. So, in this instance, not responding at all and just re-filing is perhaps the best strategy.

If the officer has only requested further evidence on one category, but granted two others, then right off the bat, you’re thinking, ok, we’re almost home, so let’s study carefully the issue the officer was unclear on and fix it. Responding to an RFE that only has one issue to resolve will often result in a win. Of course, it depends on what the issue was.

Dealing with Denials

Even if you address the RFE as thoroughly as you can, the case can still be denied if that particular officer remains unconvinced by the further evidence submitted. When we get a denial, it’s certainly not the end of the road, instead, it’s just going to be a longer road than what we might have hoped for.  At this point, your strategy is to consider what the sticking point was and then taking another look at all the factors and then re-filing the case perhaps with an additional category or resolving the issue that was a sticking point.

Introducing an Independent Expert Opinion Letter

Using an Independent Expert to render their professional opinion can be a game-changer.

Morningside Evaluations (the go-to credential evaluation agency) provides experts on demand who can review your case and write an expert opinion letter that could perhaps better explain the scientific significance of the client’s accomplishments. I had a client who was a geologist, and based on her assessment as to how much oil was in the cavity, the major oil company she worked for would decide whether or not to set up an entire drilling installation.  The U.S. adjudicating officer denied the case on the grounds that in his opinion, this geologist’s role was not critical to the organization. We then hired a Morningside expert to write an opinion letter on this issue, and then we re-filed the case, and we won without any further issues. So, sometimes, when we re-file a case, we may recommend including an expert opinion letter to add more scientific gravitas to the case. These expert letters can cost up to $2,000.00 so it’s not something we’d recommend to a client lightly or with an initial case filing, but it could indeed be a game-changer should the case run into challenges.

Administrative Appeals Office (AAO) Decisions 

When cases are appealed, and some lawyers will appeal a case rather than simply re-file a case, the Administrative Appeals Office (AAO), the body that reviews appellate cases, may publish its decision on a particular issue, whether or not it approves or denies the case. The purpose of publishing the AAO decision is to provide guidance to USCIS adjudicating officers and practicing immigration lawyers as to what the latest adjudicating guidelines and standards are concerning particular issues. These decisions are published online, and although they are filed in date order, there is no way to know without reading every single case in turn, to determine if there is a particular decision that touches directly upon the issue you may need to support your particular case.

Over the years, we have made sure that we cite these cases as best we can for each category of the case we argue, and then we try to continue adding more cases as new ones come out. At the American Immigration Lawyers Conventions, these ‘landmark’ AAO cases are also discussed. The problem is that sometimes, you will notice that some adjudicating officers will cite an older AAO that has since been reversed by the latest AAO decision, and thus with the adjudicating officer simply being unaware of the new AAO decision that should inform the officer’s adjudicating policy they can RFE or deny a case that should, based on the law, have been approved. Yes, so we have that to deal with too.

Conclusion

We’ve got you! We absolutely love what we do, and we consider it an honor to represent you in this most important step in your journey towards securing the American Dream for you and your family. We’re in this with you every step of the way.

I guess I wrote this article to help our readers appreciate that no one should be under the impression that winning an EB1 case, no matter how strong their case is, is easy. A tremendous amount of effort will be required on behalf of the client and the legal team working together to ultimately win their case. Sometimes, we can file a case and it gets approved without a hitch and sometimes, the case will get RFE’d or even denied. Whatever the challenges that might come our way, we have the experience and determination to work through them until will we. Our law firm motto is quite simple, “We fight until we win”.

If we sound like the type of law firm you would like to hire to take on your EB1 green card, even where other lawyers have failed, please get in touch and we’ll give you our honest opinion as to where you stand and then you can decide how and when you would like to proceed.

If you’re already a client, hang in there, you’re on your way to EB1 success.