Case Study: Appeal Sustained and Petition Approved by AAO on a NIW Petition Lacks of Heavy Citations but with Substantial Influence

by Victoria Chen, Esq., J.D.

Background: 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. At the time he filed the petition, the petitioner was a global capital market expert at Wachovia Capital Markets. He has since begun working for Credit Suisse Securities USA, LLC. 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.

Submitted Evidence: The petitioner submitted the following strong letter of reference:

1. Reference letter from director of Fixed Income Institutional Sales for Wachovia Capital Markets: The petitioner is widely recognized for his work in global capital markets due to his comprehensive knowledge of the U.S. and Latin American markets. Throughout his career, the petitioner has made important contributions to the field, facilitating a crucial inflow of foreign investment into the United States by successfully leading some of the largest Latin American institutions to invest hundreds of millions of dollars in the United States.

2. Reference letter from International Banking Operation Supervisor : In my capacity as International Banking Operation Supervisor, I am responsible for managing PDVSA’s liquidity position, which includes investing in U.S. money-market instruments. It is in my position as International Banking Operation Supervisor that I became aware of the petitioner as a leading experts in global capital investment management.

3. Reference letter from treasury Officer for the Panama Canal Authority: Within the field of global capital markets, [the petitioner] is widely recognized for his comprehensive expertise in identifying, evaluating and advising institutional clients on various sectors within the fixed income world. He is a crucial figure behind the Authority’s investments in introducing us to U.S. asset-backed securities (ABS).

4. Reference letter from senior Portfolio Manager and a Vice-President of ADP’s Investment Operations: The petitioner’s impeccable reputation in the field is largely attributable to his unmatched ability in some of the most complex areas of the fixed-income markets. He has provided crucial market analysis and strategic investment management advice to institutional investors, particularly in the esoteric structured finance area. The petitioner truly possesses an unmatched skill in attracting important foreign investments, particularly in South and Central America, to the U.S. capital market.

USCIS Decision: The director 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 acknowledged the intrinsic merit and national scope of the petitioner’s occupation, but found that the petitioner had submitted no objective, documentary evidence of his impact or influence on his field.

On Appeal : The petitioner submits a brief from counsel and exhibits relating to the petitioner’s compensation and his employers. Counsel protests that the director did not issue a request for evidence prior to denying the petition.

AAO’s Decision: The AAO dismissed the case regardless of strong reference letters. First of all, for the issue of RFE, the AAO stated that issuance of RFE is discretionary. If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, U.S. Citizenship and Immigration Services (USCIS) may deny the application or petition for ineligibility. As with supporting evidence, the AAO stated that the petitioner submitted no objective documentary evidence to support the claims in the above letters. Witnesses have claimed that the petitioner is a well-known figure in his field, but the record does not indicate that any evidence of his reputation existed anywhere before the petitioner solicited the witness letters.

In addition, although the petitioner submitted evidence of higher compensation than others in the same field, the evidence can only be used to support the claim of exceptional ability rather than national interest waiver.

The AAO therefore ordered that the appeal is dismissed.

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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