Case Study: Appeal Sustained and Petition Approved by AAO on a NIW Petition Lacks of Heavy Citations but with Substantial Influence

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 a member of the professions holding an advanced degree. The petitioner seeks employment as a geodesist. 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 petitioner qualifies for classification as a member of the professions holding an advanced degree but 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 petitioner submitted evidence of her published articles and abstracts and her presentations at conferences. The director noted that publications and presentations do not necessarily set a researcher apart from other researchers. At issue is whether the published and presented work has proven influential. The director noted the lack of evidence of heavy citation and concluded that the petitioner had not established her influence in the field.

USCIS’s Reasons of Denial : The petitioner submitted evidence of her published articles and abstracts and her presentations at conferences. The director noted that publications and presentations do not necessarily set a researcher apart from other researchers. At issue is whether the published and presented work has proven influential. The director noted the lack of evidence of heavy citation and concluded that the petitioner had not established her influence in the field.

AAO’s Decision: The AAO opined that while citations can certainly constitute useful and probative evidence of the influence of a given article, it is not the only type of evidence that can demonstrate an alien’s influence. The AAO find sufficient evidence other than citations that, in the aggregate, adequately demonstrates the petitioner’s influence in the field.

1. An independent’s testimony that his successful proposal was based on the petitioner’s two papers and the petitioner continued to provide guidance to the project.

2. Requests for her recent research and unpublished data.

3. Request from institution in Australia, which indicated that an independent researched had applied the petitioner’s data.

4. A request from national research institutions for petitioner’s recent presentation.

5. The petitioner was a member of the H Precipitation Executive Committee of the American Geophysical Union (AGU). In addition, the petitioner successfully proposed several AGU conference sessions, for which she solicited abstracts. The petitioner was also invited to chair an AGU conference session. Chair of the AGU Precipitation Committee asserts that the committee has only 23 members from “across the globe” and that the petitioner was invited to join the committee based on her research on rainfall and floods. The independent witness explains that upon joining the committee, the petitioner collaborated with other committee members to convene special sessions that have attracted 20 submissions and attracted media attention. The record contains an e-mail addressed to the petitioner regarding a press conference.

The AAO therefore concluded that the petitioner has sustained the burden of proof.

from Chen Immigration Law Associates

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