Case Study: Appeal Sustained and Petition Approved by AAO on a NIW petition where a low number of citations is not necessarily or automatically fatal to a national interest waiver petition

Background:

The petitioner seeks employment as a research fellow at the Massachusetts Eye and Ear Infirmary, Boston, a teaching hospital of Harvard Medical School. 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. 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 Decision & Reasons of Denial:

The director denied the petition on April 7, 2008. The director acknowledged the
intrinsic merit and national scope of the petitioner’s field of research, but
found that the record did not support several of the petitioner’s claims (such as
[IDENTIFYING INFORMATION REDACTED BY AGENCY] assertions regarding third-party use of the petitioner’s work and counsel’s assertion that other citations of the
petitioner’s work “very likely” exist). The director also noted that two of the
four documented citations were self-citations by a collaborator.

AAO Decision:

It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the alien’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit. The inclusion of the term “prospective” is used here to require future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative.

Counsel then identified one article that contained a citation of the petitioner’s work. The implication seems to be that even a single citation demonstrates that a researcher’s “exceptional expertise is highly valued by the scientific community.” The AAO rejects this argument. The petitioner himself, in his own published articles, cited the work of dozens of researchers. It does not follow that the petitioner highly values the exceptional expertise of every one of these cited authors. Independent citations are a valuable gauge of the scientific community’s reaction to a given article, but we must also look at the frequency of such citations. The AAO will not automatically infer eligibility from the mere existence of a single citation. While a low number of citations is not necessarily or automatically fatal to a national interest waiver petition, it is certainly not a factor in a given petitioner’s favor. (As we shall discuss later in this decision, the single documented citation is a self-citation by one of the petitioner’s collaborators.)

Counsel states that the record contains “plentiful of evidence” (sic) to establish the petitioner’s eligibility for the waiver, including several strong letters from independent witnesses. While the director was correct that “[f]requent citation is often evidence that other researchers in the field are applying and relying upon [one’s] work,” citations are not the only such evidence. A number of researchers at a variety of institutions, who claimed no working relationship with the petitioner, have asserted that they rely on the petitioner’s work. Furthermore, these witnesses have indicated that the petitioner’s contributions are fundamental rather than incremental. Independent witness letters do not invariably compel the approval of a petition, but in this instance the letters, in conjunction with the rest of the record, establish a preponderance of evidence in favor of approval of the waiver request and the underlying petition.

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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