Case Study: Appeal Dismissed for an NIW Petition Where only General Merits of an Alien Physician Were Evidenced

by Victoria Chen, Esq., J.D.

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

USCIS Decision: : The director did not contest that the petitioner qualifies for classification as an alien of exceptional ability or a member of the professions holding an advanced degree, but found 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.

AAO Decision:A petitioner must demonstrate a past history of achievement with some degree of influence on the field as a whole. In evaluating the petitioner’s achievements, AAO noted that original innovation, such as demonstrated by a patent, is insufficient by itself.

The petitioner submitted evidence of his research grants. However, AAO stated that research grants simply fund a scientist’s work. Every successful scientist engaged in research, of which there are hundreds of thousands, receives funding from somewhere. A research grant is principally designed to fund future research, and is not, by itself, indicative of with the investigators past influence in the field.

The AAO also noted that the number of citations of the alien’s publications is not consistent with contributions of major significance. Moreover, the citations themselves do not single out the petitioner’s work as particularly significant.

Although the petitioner’s research clearly has practical applications, it can be argued that any research, in order to be published or accepted for presentation, must offer new and useful information to the pool of knowledge. It does not follow that every researcher working with a grant producing publishable results inherently serves the national interest to an extent that justifies a waiver of the job offer requirement.

The AAO therefore concluded that on the basis of the evidence submitted, the petitioner has not established that a waiver of the requirement of an approved alien employment certification will be in the nationalinterest of the United States.

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), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

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