How to argue against an RFE (supplement J + NIW)?

[Ryan 2018]

Guys, if a denial was received what can be done? it is wage to fill or not fill the supplement J.

[Sherbs]

How did you respond them answering the rfe?
What do you mean by NOID? did they tell you a reason?

I answered by quoting the exact line in the instructions that stated NIW petitioners DO NOT NEED to file Supp J, I provided a copy of the instructions, letter from current employer stating employment in the same field as original I-140 application, plus pay stubs and further evidence of continued expertise in the field.

A NOID is a notice of INTENT to deny, which is usually sent before the actual denial. The reason for denial was failure to provide Supp J. The lawyer I consulted was pretty speechless.

[Sherbs]

Guys, if a denial was received what can be done? it is wage to fill or not fill the supplement J.

You *cannot* fill the Supp J if you have SELF petitioned: there is no job offer and none is needed to file the I-140. Therefore how can you have your employer, who has nothing to do with your petition, fill in a form that says yes, this person has a job offer. Answer is you can't, which is EXACTLY why the instructions state that self petitioners do not need to submit Supp J. Basically the officer has f-ed up and now I going to be paying in time and money (the latter is less painful) to rectify the mistakes.

The options are to open a motion to reconsider or to re-open. Reconsider means that you have to state the relevant parts of stature or law that apply to the case that have not been followed by USCIS. Reopen means that you file new/additional evidence. You can also simply re-apply. The latter costs more in filing fees and means that you will have a denial on your record. The first two cost less but take the same amount of time. Very. Annoyed.

[azblk]

I answered by quoting the exact line in the instructions that stated NIW petitioners DO NOT NEED to file Supp J, I provided a copy of the instructions, letter from current employer stating employment in the same field as original I-140 application, plus pay stubs and further evidence of continued expertise in the field.

A NOID is a notice of INTENT to deny, which is usually sent before the actual denial. The reason for denial was failure to provide Supp J. The lawyer I consulted was pretty speechless.

Rule of thumb for most is to just comply and move on. If only such a case made it to EOIR am sure the BIA would rule against them but such cases never make it that far.

[Sherbs]

Rule of thumb for most is to just comply and move on. If only such a case made it to EOIR am sure the BIA would rule against them but such cases never make it that far.

Sure: but when it's impossible to comply and the instructions state you do not need to comply if applying in a certain category, what then? Like I said, Supp J needs to be filled in by the employer who is sponsoring you for a GC to prove that job offer still exists. If you petition WITHOUT an employer and there is no job offer, you have no way of complying even if you wanted to. Argh.

[Nucleus]

I answered by quoting the exact line in the instructions that stated NIW petitioners DO NOT NEED to file Supp J, I provided a copy of the instructions, letter from current employer stating employment in the same field as original I-140 application, plus pay stubs and further evidence of continued expertise in the field.

A NOID is a notice of INTENT to deny, which is usually sent before the actual denial. The reason for denial was failure to provide Supp J. The lawyer I consulted was pretty speechless.

Sherbs,
I am very sorry to hear this. I have done same thing as you did. I wonder would you mind to share/check the officer code that is listed at last of RFE letter. Many of us who are waiting the RFE response of Suppl J are really nervous after seeing your post. Just like to make sure whether this is the same officer or not that send RFE to many of us. If the officer code is same. I would make mind to prepare for denial too.

Thanks,

[Sherbs]

Sherbs,
I am very sorry to hear this. I have done same thing as you did. I wonder would you mind to share/check the officer code that is listed at last of RFE letter. Many of us who are waiting the RFE response of Suppl J are really nervous after seeing your post. Just like to make sure whether this is the same officer or not that send RFE to many of us. If the officer code is same as mine (mine is O-A-0-2-1-4) I would make mind to prepare for denial too.

Thanks,

Nucleus, you sent a response to the RFE for supp J stating that you couldn't fill it in because it is not required for NIW and no job offer existed when you filed I-140? The two lawyers I have consulted are baffled as to what could have triggered the immediate denial. One is pushing for re-file (but if the supp J can't be completed (because there is no job offer) then I am worried that we'll get the same RFE again. Another says I should appeal (motion to reconsider) but if that is denied, which it is likely to be, then I'll have to refile anyway. Really confused as to what to do. Fortunately I am in status for another year or so. I'd rather not give the officer number but it's not the same as yours. I am being processed through the Kansas centre.

[Nucleus]

Nucleus, you sent a response to the RFE for supp J stating that you couldn't fill it in because it is not required for NIW and no job offer existed when you filed I-140? The two lawyers I have consulted are baffled as to what could have triggered the immediate denial. One is pushing for re-file (but if the supp J can't be completed (because there is no job offer) then I am worried that we'll get the same RFE again. Another says I should appeal (motion to reconsider) but if that is denied, which it is likely to be, then I'll have to refile anyway. Really confused as to what to do. Fortunately I am in status for another year or so. I'd rather not give the officer number but it's not the same as yours. I am being processed through the Kansas centre.

Sherbs,
No, I had job offer during I-140 too and mine is also processed from Kansas Center. how long does it take to get the Response after you filled the RFE.
Mine was filled in 4/9/2018. I have not heard anything yet, may be next week?

[Sherbs]

Sherbs,
No, I had job offer during I-140 too and mine is also processed from Kansas Center. how long does it take to get the Response after you filled the RFE.
Mine was filled in 4/9/2018. I have not heard anything yet, may be next week?

OK so you are in a different situation: you *can* and *should* fill in the Supplement J then as you have an employer playing a part in the 1-140 process. I did not. The denial came exactly one month after the RFE so within two weeks of me responding to the RFE I received the denial :/. If it's taking longer it's probably because they are continuing processing yours.

[Nucleus]

OK so you are in a different situation: you *can* and *should* fill in the Supplement J then as you have an employer playing a part in the 1-140 process. I did not. The denial came exactly one month after the RFE so within two weeks of me responding to the RFE I received the denial :/. If it's taking longer it's probably because they are continuing processing yours.

Sherbs, apprciate your response. I think we both are in same situation. I had job during I-140 and have been employed since then but at different university. I did self filing University did not play any role while filing both I-140 and I-485 but I consulted IO officer of my university they had told me that they can fill the suppl J if needed but I did not include since ,as you did, I also thought it is not required and also filing suppl j seems lying the information so I included employment verification letter and pay stubs which was working well for other guys but did not realize that Kansas center is different than Missour. I wonder can I send another response with Suppl J while first response is still in review? This overland park center seem very scary.

[Sherbs]

Sherbs, apprciate your response. I think we both are in same situation. I had job during I-140 and have been employed since then but at different university. I did self filing University did not play any role while filing both I-140 and I-485 but I consulted IO officer of my university they had told me that they can fill the suppl J if needed but I did not include since ,as you did, I also thought it is not required and also filing suppl j seems lying the information so I included employment verification letter and pay stubs which was working well for other guys but did not realize that Kansas center is different than Missour. I wonder can I send another response with Suppl J while first response is still in review? This overland park center seem very scary.

Ah I see: yes who knows what's going on at Overland Park . Am waiting more info from my lawyers. My than likely I just got unlucky