Case Study: Appeal Sustained and Petition Approved by AAO on a NIW petition for an Alien Who Was not the First Author of her Mostly-Cited Publication

by Victoria Chen, Esq., J.D.

Background: The petition seeks to classify the petitioner pursuant to section 203(b)(2) of the Immigration and Nationality Act, as a member of the professions holding an advanced degree. 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 petitioner received her Ph.D. in Chemistry from Northwestern University. The director therefore found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner has 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 director’s decision stated that the alien was the first author of only one article. The alien has not established that she was the lead, or one of the lead researchers, in three of the five studies. And one published article has been shown to have been cited 103 times, however, the alien was not the primary author of that article.

AAO Decision: The Office reiterates the three factors which must be considered when evaluating a request for a national interest waiver. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

AAO finds that that the petitioner works in an area of intrinsic merit, chemistry, and that the proposed benefits of the petitioner’s work would be national in scope. And the petitioner will benefit the national interest to a greater extent than an available U.S. worker with the same minimum qualifications. AAO disagrees with the USCIS officer on the third prong of NYDOT case and determines that the petitioner has satisfied the heavy burden of proof.

The Office finds that the petitioner’s initial submission included citation indices from ISI Web of Knowledge indicates that her body of work has been cited to more than one hundred times. Such independent citations are solid evidence that other researchers have been influenced by the petitioner’s work and are familiar with it. In addition, on appeal, the petitioner submits additional citation records showing that the article she first- authored in Nature Chemical Biology has been independently cited to seventeen times as of the petition’s filing date. With regard to the petitioner’s article in Science that was her most frequently cited work, the petitioner submits letters of support from the “co-first-authors” of the article explaining that her contributions were “crucial” to their research results. As a result, AAO finds that the evidence submitted on appeal is sufficient to satisfy the third prong of NYDOT case and therefore, the Office decides that the evidence submitted by the petitioner is adequate to meet the three-prong test established by NYSDOT.

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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