Case Study: AAO Withdrawn Approval Decision of a NIW Petition of a Researcher
by Victoria Chen, Esq., J.D.
Background: The employment-based preference visa petition was approved by the Director, Texas Service Center. The director's decision was withdrawn and the petition was denied by the AAO.
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 research Associates. 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 petitioner has been involved in research studying the correlation between nutrition and mortality in individuals infected with HIV-1, the virus widely believed to cause acquired immune deficiency syndrome (AIDS).
USCIS Decision:The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree and that the petitioner had established that an exemption from the requirement of a job offer would be in the national interest of the United States.
AAO's Decision: The AAO admitted the AIDS research has intrinsic merits and is national in scope. However, the AOO stated that evidence is not support NIW. To be specifically, the petitioner is credited as the primary author in only two of the research articles submitted with the petition, neither of which appears to be directly related to the research cited by the director as justifying the national interest waiver.
Rather, the witnesses have attested to the petitioner's work with statistics and manuscript preparation. It appears, therefore, from the evidence available that the petitioner has been assisting with the research, but has not been a primary motivator.
The petitioner has not established any reputation beyond those individuals who are working, or have worked directly with him. Furthermore, the record does not show that this research represents a major milestone in HIV/AIDS research. While the research shows positive results, and adds to the body of knowledge about the disease, it could be argued that it would serve no purpose to publish research which did not do so. It is beyond dispute that HIV/AIDS presents a major challenge to the medical and scientific communities in the United States and around the world. However, it cannot be argued that an alien substantially serves the national interest simply by virtue of participating in HIV/AIDS
Thereofre, the AAO ordered that the decision of the district director approving the application is withdrawn, and the application is denied.