Case Studies: How to use Documentary Evidence to Corroborate your Claims
Section 203(b)(2) of the Immigration and Nationality Act (INA) states that alien who are members of the professions holding advanced degree or aliens of exceptional ability (A) In General, … visas shall be made available … to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States. (B) Waiver of Job Offer. (i) … the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
The above paragraph is the legal basis of the immigrant petition under the term of “national interest waiver” (NIW). However, neither the statute nor pertinent regulations define the term. Congress did not provide a specific definition, too. Legislative history indicates that it is appropriate to leave the application of this test as flexible as possible. Based on the legislative background, adjudicators with Citizenship and Immigration Services (USCIS) have broad discretion in adjudicating NIW petitions in a very subjective or even arbitrary manner.
For instance, USCIS California Service Center, in denying a NIW case, stated that “the petitioner must show that by not being given immediate immigrant status the national interest of the United States would actually be harmed.” No one can find this “requirement” from statute, regulation or decision of Administrative Appeals Office (AAO). Not surprisingly, AAO sustained the appeal and approved the NIW petition.
While USCIS or AAO focus on the “prospective national benefit”, the burden of proof rests with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits. The key to prove prospective national benefit while a current job offer is not required is based on alien’s past record to project his or her future benefit to the national interest. Therefore, the issue for every NIW petition is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.
In 1998, AAO promulgated a precedent decision, Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998), to set forth several factors which must be considered when evaluating a request for a NIW. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Usually, petitioner does not have difficulty in meeting first and second requirements. However, the third requirement, again, is kind of subjective one, depending on adjudicator’s determination based on petitioner’s prior achievements. If he or she believes that alien’s past prior achievement does not warrant recognition and alien’s benefit to the national interest would thus be entirely speculative. By contrast, another adjudicator or AAO may deem alien’s contributions suffice to establish prospective national interest.
Holding a Ph.D. in Information Management Systems from the University of California, Berkeley, the petitioner in a NIW case filed to California Service Center (CSC) in 2003 made a detrimental letter from a private company which filed a patent 2 years prior to the petitioner’s employment and claimed. Although AAO cast doubt on any aspect of petitioner’s evidence, the petitioner had other 13 strong witness letters from UC Berkeley, The National Academies, and IBM to assert his work being groundbreaking and having dramatic influence on the development of modern analytics software application. The petitioner also had moderate citation by 10 independent research teams. In conclusion, AAO deemed that the benefit of retaining alien’s services outweighs the national interest inherent in the labor certification.
From the above AAO decision, we can learn that a carefully drafted reference letter can save a NIW petition and we need to choose not to submit a letter sometimes when it might hurt your reliability and sufficiency. Also, a request from CSC’s adjudicator to submit a reference letter from National Science Foundation is without merit. Finally, as we emphasize earlier, NIW is a very subjective immigrant petition although it is made based on alien’s objective evidence, such as published articles, citations, awards, patents, journal reviewing, etc. How much is enough is always in USCIS adjudicator's mind.
Another AAO decision also “save” the NIW petition and sustained the appeal. The alien is computational mechanics researcher with a Ph.D. in engineering. The petitioner made a detrimental, although not fatal, argument that alien’s prospective employer has a policy not to seek labor certification and then make labor certification impossible. AAO stated that an employer’s policy cannot obligate USCIS to waive the labor certification process by choosing not to pursue that process. The inconvenience of the labor certification process simply should not be a reason to request waiver.
AAO indicated that the issue is whether the petitioner’s contributions in the field are of such unusual significance that the petitioner merits the special benefit of a national waiver over and above the visa classification he seeks. Lucky enough, the alien had made a singular contribution to develop sensitivity studies which are faster, cheaper and more accurately than ever before. AAO was persuaded that retaining petitioner's services outweighs the national interest in labor certification process.
In this case, CSC noted that there is no independent researcher having cited alien’s work. AAO took the position that lack of frequent citation is not a bar to eligibility where other objective evidence of the petitioner’s influence exists while independent citations are often useful evidence for gauging a researcher’s impact on the field. Reasoning behind this statement is that engineers designing new technology may not disseminate their most significant work for intellectual property reasons or because it is limited to a narrow segment of the field. Therefore, we still advise clients to submit NIW petition with independent citations as many as possible. But lack of citation does not of itself a bar to NIW if you may have sufficient legitimate reason to justify.
Finally, AAO addressed the importance of independent or unbiased opinion. While letters from colleagues are important in establishing the alien’s role on a specific project, they cannot establish the influence of the work outside the petitioner’s immediate circle of colleagues. We always tell our clients: the more independent references you have, the better chance your NIW may succeed. While you have references from your advisor, professor, and supervisor, it is more important that you can obtain references from other experts in the same field outside of your immediate circle of colleagues, such as professor you meet at conference, journal editor, researcher reviewing or citing your papers from National Academy of Engineering, or even employer’s clients. All of them can provide more persuasive evidence than alien's collaborators.
Procedure to process NIW
"Approval or No Fee*" Service
Significance of Citations
Some Stringent Comments from USCIS
Case Studies: How to use Documentary Evidence to Corroborate your Claims