Case Study: Appeal Sustained and Petition Approved by AAO on a NIW petition for an Alien Who had 25 independent citations

Background:

The petitioner submitted printouts from the Science Citation Index, showing that two of his articles were cited three times each, and a third was cited seven times, for an aggregate total of thirteen citations (eight of which appear to have been self-citationsby the petitioner or his collaborators). The petitioner did not document any othercitations. Over 26 published papers, thirteen citations yields an average citation rate of .5, not 4.3. Therefore, the petitioner appears to have derived the claimed average of 4.3 citations per paper by considering only his three cited articles; 13 divided by three is roughly equal to 4.3. It is, however, misleading to term this statistic “the citation impact of his international publications.” It would seem more accurate to state that the statistic shows the citation impact of his cited publications, setting aside the 23 out of 26 articles (88%) for which the petitioner had, at the time, offered no evidence of citation.

USCIS Decision & Reasons for Denial:

The director denied the petition on January 22, 2008. The director acknowledged
the intrinsic merit and national scope of the petitioner’s occupation, but found
that the petitioner had failed to establish the extent of her impact in her field.
The director noted that the witnesses who provided letters “do not. . . provide
any examples of specific resources that they have adopted or expressed interest in
adopting” from the petitioner’s work. The director also found the petitioner’s
documented citation history to be minimal. The director concluded that the record
shows that the petitioner has “potential to influence the field,” but not that she
has yet realized that potential.

AAO Decision:

In response, the petitioner submitted additional materials, including evidence that the number of citations of the petitioner’s work had more than tripled from 13 to 42, including citations of several of the petitioner’s previously uncited works. Of these 42 citations, 17 appear to be self-citations by the petitioner or his coauthors.

The AAO concurs with counsel on this point. Nothing in the statute, regulations, or Matter of New York State Dept. of Transportation indicates that an alien must have “sole, principal, or primary credit in a patent” or have “led his own research efforts” in order to qualify for the waiver. Contemporary scientific research is, by nature, typically a collaborative enterprise. Furthermore, leading a research team or receiving “sole, principal or primary credit in a patent” would not be presumptive evidence in favor of granting the waiver. More important, for our purposes, is the originality and innovation of the alien’s own work. An alien whose own creativity results in significant advances in the field is better qualified for the waiver than an alien who simply follows the instructions of another researcher who, in turn, is the ultimate source of significant advances. Leading a research team places a researcher in a position of greater responsibility, but one need not lead the team to devise new ideas or methods that advance the field. Of greatest importance is what the alien has achieved, not the rank the alien held while achieving it.

The petitioner’s reputation is not confined to his collaborators and superiors, and a number of independent witnesses have described the significance of the petitioner’s work in detail rather than simply offering the general and obvious observation that research into alternative fuels ought to be encouraged, or the vague assurance that the petitioner’s work is “promising.”

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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