EB1A RFE for Researchers

An EB1A Request for Evidence can challenge one or more regulatory criteria, the final merits determination, or both. Researchers should respond to the specific findings in the RFE rather than simply submit more publications, citations and recommendation letters without explaining how the evidence addresses USCIS’s concerns.

USCIS evaluates EB1A under a two-step framework. First, USCIS determines whether the applicant satisfies the required regulatory criteria. If the applicant meets the initial evidentiary threshold, USCIS then evaluates the entire record to determine whether the applicant has sustained national or international acclaim and is among the small percentage who have risen to the very top of the field.

Review the complete EB1A for researchers guide.

What Is an EB1A RFE?

A Request for Evidence is a notice from USCIS stating that the existing record does not establish one or more requirements to the officer’s satisfaction and giving the petitioner an opportunity to respond.

The RFE should be read carefully because it normally identifies:

the legal requirement USCIS believes has not been established;
the evidence USCIS already considered;
why USCIS found that evidence insufficient;
additional evidence USCIS may consider; and
the deadline for the response.

Do Not Treat Every EB1A RFE the Same

Two researchers with similar publication and citation records may receive very different RFEs.

One notice may challenge original contributions. Another may accept three regulatory criteria but challenge final merits. Another may question whether a leading role was performed for a distinguished organization.

The response should be organized around the actual findings in the notice.

Step One: Identify Every USCIS Finding

Before gathering new evidence, create a list of every criterion and legal issue discussed in the RFE.

For each issue, identify whether USCIS:

accepted the criterion;
rejected the criterion;
questioned only part of the criterion;
requested additional documentation;
mischaracterized evidence already submitted; or
raised a final-merits concern.

Do Not Re-Litigate Accepted Criteria Unnecessarily

If USCIS clearly states that a criterion has been satisfied, the response generally should focus its evidentiary resources on disputed issues and final merits rather than bury the adjudicator in repetitive documents.

Original Contributions RFE

Original contributions of major significance are among the most frequently disputed EB1A issues for researchers.

USCIS must evaluate two concepts:

whether the contribution is original; and
whether it is of major significance in the field.

Publication of original research does not by itself establish major significance.

Review EB1A original contributions.

How to Respond to an Original Contributions RFE

The response should identify specific contributions rather than rely only on the applicant’s overall publication record.

For each contribution, consider documenting:

what the applicant created or discovered;
why it was original;
the applicant’s personal role;
how others in the field used the contribution;
article-level citations;
field-normalized citation evidence;
independent implementation;
patents or licenses;
commercialization;
clinical use;
government use;
incorporation into standards;
software or dataset adoption; and
detailed expert testimony corroborated by objective evidence.

Aggregate Citations May Not Be Enough

A total citation count can demonstrate overall scholarly attention, but USCIS may question how that total establishes the major significance of a particular original contribution.

A stronger response may connect specific highly cited papers to specific claimed contributions.

Review citation count versus citation impact.

Comparative Citation Evidence

USCIS guidance recognizes that research cited at a high level relative to other work in the field may be probative of significance.

If USCIS dismisses raw citation numbers as insufficient, useful comparative evidence may include:

field and publication-year percentiles;
credible bibliometric benchmarks;
citation rates relative to similar research;
evidence of unusually rapid citation growth; and
specific examples of substantive independent use.

Journal Impact Factor Is Not Personal Impact

An RFE may correctly distinguish the prestige of a journal from the significance of the applicant’s individual article.

A response should not rely solely on journal impact factor to prove a major contribution.

Review journal impact factor in immigration petitions.

Peer Review or Judging RFE

The EB1A judging criterion requires actual participation as a judge of the work of others in the same or an allied field.

An invitation to review may not prove that the applicant actually completed the review.

Review EB1A peer review and judging.

Evidence for a Peer Review RFE

Useful evidence may include:

completed-review confirmations;
editor emails;
reviewer dashboards;
journal certificates;
conference review records;
grant-panel documentation;
editor letters confirming completed reviews; and
evidence explaining how reviewers are selected.

Judging Criterion Versus Final Merits

Completing peer reviews may satisfy the initial criterion without necessarily proving that the reviewing activity is extraordinary.

At final merits, the response may explain:

the number of reviews;
frequency of invitations;
reputation of journals;
selectivity of reviewer appointments;
editorial responsibilities;
international scope; and
how the activity compares with ordinary researchers at a similar level.

Scholarly Authorship RFE

For researchers, qualifying peer-reviewed scholarly articles commonly satisfy the authorship criterion.

USCIS does not impose a first-author requirement.

Review EB1A scholarly authorship.

Coauthored Publications

If an RFE appears to discount papers merely because they are coauthored, the response should distinguish authorship of a scholarly article from arguments about the applicant’s personal role in a specific contribution.

Review first author versus coauthor publications.

Published Material RFE

USCIS may question whether media evidence is actually about the applicant or the applicant’s work, or whether the publication qualifies as professional, major trade or other major media.

Evidence may include:

the complete article or transcript;
title;
date;
author;
readership or circulation information;
professional audience information;
translation where needed; and
evidence connecting the applicant to research discussed in the article.

Review EB1A published material.

Leading or Critical Role RFE

USCIS may accept that a researcher performed important work but question whether the role was leading or critical or whether the organization, department or division had a distinguished reputation.

Review the EB1A leading or critical role criterion.

Evidence of a Critical Research Role

A response may document:

why the applicant’s role was important to an institutional objective;
specific responsibilities;
research leadership;
technical responsibilities unavailable from other team members;
results attributable to the applicant;
letters from knowledgeable institutional officials;
organizational charts;
grant responsibilities;
project records; and
objective evidence of the organization’s or relevant unit’s distinguished reputation.

Awards RFE

USCIS may question whether an award is nationally or internationally recognized for excellence in the field.

The response should document:

award criteria;
eligibility;
number of candidates;
number of recipients;
selection process;
reputation of the awarding organization;
geographic scope; and
evidence that the applicant personally received the award.

Review EB1A awards for researchers.

Membership RFE

Ordinary professional memberships generally do not satisfy the EB1A membership criterion.

The response should establish that membership requires outstanding achievements judged by recognized national or international experts.

Review the EB1A membership criterion.

High Salary RFE

USCIS may question whether compensation is actually high relative to others in the field.

The most useful comparisons normally account for:

occupation;
geographic location;
career level;
academic versus private-sector employment;
base salary versus total compensation; and
credible wage data for the relevant labor market.

Review EB1A high salary for researchers.

Recommendation Letter RFE

An RFE may give limited weight to recommendation letters that contain broad praise but little objective support.

The response should use letters to explain specific facts rather than replace documentary evidence.

Review recommendation letters for researchers.

Independent Expert Letters

An independent expert can be especially useful when the writer previously knew, cited, used or evaluated the applicant’s work.

The letter should explain how the writer became familiar with the research.

Final Merits RFE

An applicant may satisfy three or more regulatory criteria and still receive an RFE questioning final merits.

This is not necessarily inconsistent with the EB1A framework.

USCIS separately determines whether the complete record demonstrates:

sustained national or international acclaim;
achievements recognized in the field; and
that the applicant is among the small percentage at the very top of the field.

Review EB1A final merits.

How to Respond to Final Merits

The response should synthesize the strongest evidence rather than merely repeat that three criteria were satisfied.

Potential evidence may include:

field-normalized citation performance;
highly influential individual publications;
independent research adoption;
extensive or selective judging;
significant invited speaking;
major awards;
important institutional roles;
media attention;
patents and commercialization;
government or industry adoption;
research grants; and
other objective evidence distinguishing the applicant from ordinary professionals.

Define the Field Carefully

Final-merits analysis often depends on comparison with the relevant field.

The response should define the field consistently with the applicant’s actual expertise and evidence rather than make the field artificially narrow solely to improve comparisons.

Preponderance of the Evidence

The petitioner bears the burden of establishing eligibility by a preponderance of the evidence.

The response should explain why the evidence makes the claimed fact more likely than not rather than assume USCIS requires absolute certainty.

Eligibility Must Exist at Filing

An applicant must establish eligibility as of the petition’s filing date.

An RFE response may provide additional documentation and explanation of eligibility that already existed at filing.

The response should not depend on later achievements to create eligibility that did not exist when the petition was filed.

Later Evidence Requires Careful Treatment

Documents created after filing may sometimes provide evidence concerning facts or achievements that existed earlier, but post-filing accomplishments should not be used as a substitute for filing-date eligibility.

Correct USCIS Factual Errors

An RFE may occasionally contain a factual mistake concerning:

citation totals;
publication dates;
author position;
research field;
the applicant’s role;
the number of completed reviews; or
documents already submitted.

The response should identify the error respectfully, quote or summarize the relevant USCIS finding and point the officer to the correct evidence.

Do Not Ignore an Unfavorable Finding

If USCIS raises a weakness, simply adding exhibits without addressing the reasoning may leave the underlying issue unresolved.

Each major finding should receive a direct factual and legal response.

Organize the Response Around the RFE

A useful structure may be:

brief introduction;
summary of the applicable EB1A standard;
criterion-by-criterion response;
final-merits response;
discussion of any USCIS factual or legal errors;
exhibit citations; and
conclusion explaining how the total record satisfies the standard.

Use an Exhibit Map

Researchers often submit large records. A clear exhibit map can help USCIS locate:

publications;
citation reports;
bibliometric comparisons;
peer-review records;
patents;
grant documents;
media;
recommendation letters; and
institutional evidence.

Common EB1A RFE Response Problems

responding with volume instead of analysis;
failing to separate step-one criteria from final merits;
using aggregate citations without identifying significant contributions;
relying on journal impact factor as personal impact;
counting review invitations instead of completed judging;
using generic recommendation letters;
failing to correct factual errors in the RFE;
using post-filing achievements to create eligibility;
ignoring the officer’s stated reason for finding evidence insufficient; and
assuming that satisfying three criteria automatically requires approval.

Related EB1A Evidence Guides

Primary Legal Sources

USCIS Policy Manual, Extraordinary Ability
8 C.F.R. § 204.5(h)
8 C.F.R. § 103.2
Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010)
Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)

Respond to the Officer’s Actual Concerns

An effective EB1A RFE response is not simply a second version of the original petition. It identifies exactly why USCIS found the record insufficient, supplies the missing evidence or explanation and then shows how the complete record satisfies both the regulatory criteria and final merits determination.

Contact The Messersmith Law Firm to request review of an EB1A RFE for a researcher or scientist.

This page provides general immigration information and is not legal advice.