Case Study: Appeal Sustained and Petition Approved by AAO on a NIW petition where no rigid formula by which a certain number of citations and/or witness letters draws a sharp line between eligible and ineligible aliens

Background:

The petitioner is a postdoctoral researcher at the Ohio State University (OSU). 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 November 8, 2007, stating that, while the
petitioner “is well educated and has conducted important research in chemistry,”
the petitioner had not demonstrated “a national benefit so great as to outweigh
the national interest inherent in the labor certification process.”The director
also stated that, to establish eligibility, “[a] petitioner should not only
demonstrate a past history of achievement, but also some degree of influence on
the field as a whole.”

AAO Decision:

The citation count on the two most-cited papers had risen to 18 and 25, respectively. The documentation submitted in support of this claim included information on the citing articles, information that was omitted from the initial submission. This newly-available information indicates that, of the 25 citations of the petitioner’s most-cited article, as many as 17 are self-citations by the petitioner or his co-authors. All told, about 40 of the petitioner’s documented citations are self-citations, which leaves a respectable total of over 50 apparently independent citations. (We note that this updated total is still well below counsel’s prior claim of 70 citations “by other researchers.”)

On appeal, the petitioner argues that the numerous independent citations of his work are evidence of the required influence on his field, and that “[t]he discussions in the denial notice were just ‘boilerplate’ and not specific to my case at all.” These assertions have considerable merit. The director referred to the petitioner as “a chemist” but otherwise offered no specific discussion of the merits or weaknesses of the petitioner’s evidence.

In this instance, the petitioner has submitted independent testimonial evidence attesting to the significance not only of the petitioner’s field, but of the petitioner’s specific work within that field. The petitioner’s citation record constitutes documentary evidence that establishes the influence of the petitioner’s findings on the work of others in the field. While letters and citations can be, and often are, valuable measures of a given alien’s influence on a particular field, there exists no rigid formula by which a certain number of citations and/or witness letters draws a sharp line between eligible and ineligible aliens. Rather, the specific merits of each individual petition (including, many times, factors apart from letters and citations) warrant careful consideration.

from Chen Immigration Law Associates

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