Case Study: NIW Appeal Dismissed because the Petitioner Did not Meet the Burden of Proof on the Third Prong of NYDOT Case–Past Achievements.

by Victoria Chen, Esq., J.D.

Background: This petition seeks to classify the petitioner pursuant to section 203(b)(2) of the Immigration and Nationality Act, as an alien of exceptional ability or a member of the professions holding an advanced degree. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States.

USCIS Decision: : The director found that the beneficiary does not qualify for classification as an alien of exceptional ability and that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States.

USCIS’s Reasons of Denial: The director’s decision noted that the submitted evidence did not establish any specific impact that the petitioner’s research articles have had on the field of dendrimer technology. The director’s decision further stated that no evidence of specific contributions of the petitioner himself has been submitted. The fact that the petitioner is merely Associatesd with a ground-breaking scientific researcher does not establish that a waiver of an approved labor certification is in the national interest.

AAO Decision: While the petitioner’s research at Central Michigan University was no doubt of value, it can be argued that any research must be shown to be original and present some benefit if it is to receive funding and attention from the scientific community. Any master’s thesis or research undertaken in a university setting, in order to be accepted for graduation, publication, or funding, must offer new and useful information to the pool of knowledge. It does not follow that every researcher who performs original research that adds to the general pool of knowledge inherently serves the national interest to an extent that justifies a waiver of the job offer requirement. In this case, the record does not establish that the petitioner’s research findings represented a significant advance in nanotechnology because of absence of the following evidence:

1. Citation: Rather than submitting evidence of citations from an official source such as an online scientific database, the petitioner instead submitted a self-serving list of citing articles compiled in an unsigned letter. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof. AAO says even if they were to consider the citations listed in the unsigned letter, it notes that six of the citing articles were self-citations and the petitioner’s coauthors. Self-citation is a normal, expected practice. Self-citation cannot, however, demonstrate the response of independent researchers. In this instance, the unsigned letter indicates that the petitioner’s work has only been moderately cited by independent researchers. The citation information submitted by the petitioner is not sufficient to demonstrate that his work has significantly influenced his field as a whole or otherwise sets him apart from other researchers in his field.

2. Recommendation letter: The petitioner has not submitted any letters from independent references who provide specific examples of how his work has significantly influenced his field or has been applied by others to an extent that justifies a waiver of the job offer requirement.

Therefore, AAO concludes that the petitioner has not sustained the burden of proof and the appeal is dismissed.

from Chen Immigration Law Associates

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability) and EB1-B (Outstanding Researcher/Professor).

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With 12,000 EB-1A, EB-1B and EB-2 NIW approvals, we have first hand information on the manner in which the USCIS adjudicate I-140 cases. As the USCIS has constantly changed its adjudication standards for the EB-1A, EB-1B and EB-2 NIW categories, our firm's huge database of successful cases gives you unprecedented insight to USCIS adjudication trends. We carefully analyze the data for all of our cases and apply the results of our analyses toward giving our clients up-to-date advice and adapting our strategies such that we remain on par with the ever-shifting landscape of immigration law in the U.S. With us, you will always have access to important updates, strategies, and information so that you can make the most informed decisions about your case.

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