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Supporting Evidence for a NIW case

A. Past Contributions and Achievements:

In terms of the quality of the evidence, the AAO has focused on the existence of a history of valuable contributions made by the applicant in the field and the critical role played by the applicant in “cutting edge“ projects in the field. Where the AAO has not found such a track record, it has denied the waiver requests. In some cases, the AAO has evaluated the applicant's contributions in terms of their practical significance. The AAO has suggested that only tangible, immediate manifestations of a “track record of success“ would support a research-based waiver request.

B. Specific Description of Position to be Filled:

In general, the AAO has taken the position that if persons with less education, training or experience may adequately perform the job duties for the position, the applicant's superior qualifications may be discounted even if the credentials clearly place the applicant on top of his or her field. In essence, therefore, the position to be filled by the foreign national must also require the services of a person with the applicant's superior or unique credentials.

Employers should present evidence that focuses on the relative significance to the national interest of the particular activity in which the applicant is engaged (and not just generally on the field of endeavor), and the crucial role the foreign national plays in that activity. Thus, not just the applicant's credentials but how those credentials benefit the applicant in filling that crucial role must be documented. The documentation should establish that persons with inferior credentials may not be able to fill that crucial role. Affidavits and expert letters should focus on the specific case, and underline the benefit of the activity and the crucial nature of the foreign national's role.

C. Supporting Letters from Experts in the Field:

The post-NYDOT decisions also establish that the qualifications of the “experts“ submitting testimonials are crucial. The decisions place greater emphasis on the credentials of those individuals who submit letters of support.

Supporting Letters from Experts or Authorities Have more Weight.

Generally, individuals recognized as authorities or experts in the field are given greater weight. A statement should be included in the support letter that establishes the qualifications of these individuals to judge the foreign national's work.

Supporting Letters from Closely-related or Undistinguished Persons Have Little Weight.

Support from other employees of the same petitioner or organization that is currently employing the foreign national or seeks to employ the alien have been given little or no weight on the basis that they lack objectivity. Similarly, testimonial letters from undistinguished colleagues or former college instructors have been subject to greater scrutiny than letters submitted by high-level officials of recognized major organizations.

Examples:

In a case in which a petitioner sought an NIW for a postdoctoral researcher, the AAO noted that the evidence included “independent testimonial evidence attesting to the significance not only of the petitioner's field [impact of free radicals on human health], but of the petitioner's specific work within that field.“ In a similar case involving a post-doctoral researcher, the AAO found that, although the petitioner had a moderate citation rate, she submitted persuasive testimony of independent witnesses who explained the manner in which the petitioner's work had influenced their work. The evidence, the AAO held, suggested that the benefit of retaining the petitioner's services outweighs the national interest in the labor certification process.

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