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USCIS sometimes issues RFEs citing the absence of patents, publications, media coverage, and awards as evidence that a petitioner is not well-positioned. This approach misreads the Dhanasar standard. The law does not require any of these items. This article explains your rights under the correct legal standard and how to build a compelling Prong 2 case using the evidence you actually have.
What the Law Actually Requires for Prong 2
The Policy Manual is explicit and unambiguous: the list of evidence types it provides for Prong 2 “is not meant to be a checklist or to indicate that any one type of evidence is either required or sufficient to establish eligibility.” This language is critical. USCIS cannot legally require you to produce patents, publications, or awards, because the authoritative guidance itself says no single type of evidence is required.
The actual standard for Prong 2 asks whether you are “well positioned to advance the proposed endeavor.” The Policy Manual identifies the relevant factors as: your education, skills, knowledge, and record of success in related or similar efforts; evidence of a detailed proposal or plan for future activities; any progress toward achieving the proposed endeavor; and the interest or support from potential customers, users, investors, or other relevant entities. None of these factors requires a patent, a publication, or a formally recognized award.
When an RFE identifies the absence of patents, publications, or awards as a deficiency, it is worth examining whether the RFE is applying the correct standard. Dhanasar does not demand these items. The Policy Manual does not demand them. An RFE that treats their absence as disqualifying, without first evaluating whether other evidence satisfies the Prong 2 factors, is applying a novel evidentiary standard that the law does not support. Responding to such an RFE requires both providing what additional evidence you can and gently correcting the legal framework being applied.
Evidence That Substitutes Effectively for Traditional Credentials
Professionals without patents, publications, or industry awards can build strong Prong 2 cases using several alternative evidence types that the Policy Manual specifically lists. The most important of these is a detailed personal statement that describes your specific plan for continuing your proposed work in the United States. The Policy Manual explicitly lists “a plan describing how the person intends to continue the proposed work in the United States” as valid Prong 2 evidence. This plan should be specific about what you will do, in what sectors, using what methodologies, on what timeline, and with what anticipated outcomes.
Employer letters from past and current organizations are another strong alternative. These letters can document specific projects you led or contributed to, the outcomes of those projects, the skills and expertise you applied, and assessments of your contributions from people who supervised or collaborated with you. The key is to ensure these letters go beyond confirming employment dates and job titles — they should describe specific work, specific results, and specific assessments of your expertise relative to peers.
Correspondence from prospective clients, collaborators, or employers is another underused evidence type explicitly listed in the Policy Manual. If U.S.-based organizations have expressed interest in your services, your research, or your proposed work, that interest constitutes evidence that relevant parties view you as positioned to advance your endeavor. Emails, letters of intent, or formal invitations to collaborate all serve this function.
How to Document Impact Without Publications
Many professionals produce meaningful contributions to their fields without ever publishing in an academic journal. Industry reports, internal white papers, process documentation, training materials, technical standards contributions, and system architectures are all forms of knowledge production that do not generate traditional citations but do represent substantive expertise.
The challenge with this type of work is documentation, since much of it remains proprietary. Where possible, try to obtain employer permission to reference and summarize (without reproducing) the nature of the work and its impact. A letter from an employer that describes the scope and outcome of a significant project — even without disclosing proprietary details — can convey the significance of your contributions effectively.
If your work has influenced how your organization does things — if a process you designed is now standard practice, if a tool you built is in active use, if a framework you developed was adopted across departments — document that influence specifically. USCIS looks for evidence that your work has influenced your field of endeavor. An employer or supervisor who can attest that your methodology changed how the organization approaches a problem is providing exactly that kind of evidence, even without a journal citation.
Research Invitations and Third-Party Interest
One of the most accessible forms of Prong 2 evidence for professionals without traditional credentials is demonstrated interest from third parties. The Policy Manual explicitly lists “correspondence from prospective or potential customers, users, investors, or other relevant entities” and “letters from government agencies or quasi-governmental entities” as evidence of being well positioned.
An invitation to join a research collaboration — even an informal one — demonstrates that others in your field view your expertise as relevant and valuable. An invitation to contribute to a professional working group, an industry committee, or a standards body carries similar weight. A request from another organization to consult on a project, even if preliminary, shows external recognition of your positioning.
If you do not have these letters in hand, consider whether you can obtain them before filing. Reach out to professional contacts, academic researchers whose work aligns with yours, or industry organizations in your field. Explain your proposed endeavor and ask whether they would be interested in collaborating. A genuine expression of interest, documented in writing, can significantly strengthen your Prong 2 section at relatively low cost.
Pushing Back on Novel Requirements in an RFE
If you receive an RFE that treats the absence of patents, publications, media coverage, or awards as evidence that you are not well positioned, your response should do two things simultaneously. First, provide as much additional evidence as you can gather that demonstrates your positioning through the channels described above. Second, explicitly note the applicable legal standard and the Policy Manual’s language confirming that no single evidence type is required.
Citing the Policy Manual language — “this list is not meant to be a checklist or to indicate that any one type of evidence is either required or sufficient to establish eligibility” — directly addresses the misapplication of the standard without being adversarial. You are not accusing the officer of wrongdoing; you are clarifying the correct framework. Combined with a strong body of alternative evidence, this approach gives you the best chance of a successful RFE response without patents, publications, or awards.
Remember that the standard is preponderance of the evidence — more likely than not. You do not need to be a Nobel laureate. You need to show that it is more likely than not that you are well positioned. Professionals with deep practical expertise, strong employer endorsements, forward-looking plans, and third-party interest regularly meet this standard without traditional academic credentials.
References and Further Reading
USCIS — Form I-140 Instructions — https://www.uscis.gov/i-140
USCIS Policy Manual, Volume 6, Part F, Chapter 5 — Second Prong Analysis — https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) — https://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20Holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2016/DEC012016_01B5203.pdf
Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) — Preponderance of Evidence Standard — https://www.uscis.gov/sites/default/files/err/B5%20-%20Members%20of%20the%20Professions%20Holding%20Advanced%20Degrees%20or%20Aliens%20of%20Exceptional%20Ability/Decisions_Issued_in_2010/jan052010_01b5203.pdf
