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| Copyright © Liu&Associates,PLLC. All rights reserved. |
National Interest Waiver Cases Appealed to AAO
Compiled and Summarized by Susan K. Covington, Case Manager at Liu & Associates, PLLC
When a National Interest Waiver petition was erroneously denied
by the USCIS, the petitioner/beneficiary can appeal the denial to the
Administrative Appeals Office (AAO) within 30 days of the denial date.
The legal standards for a National Interest Waiver as set out in
Matter of New York State Dept. of Transportation are: (1) that the
alien seeks employment in an area of substantial intrinsic merit; (2)
that the proposed benefit will be national in scope; and (3) that the
national interest would be adversely affected if a labor certification
were required. AAO will either sustain or dismiss the appeal based on
the evidence submitted.
***********************************************************************
AAO Appeal Case No. 1
Case Type: NIW
Original Case: The Petitioner/Beneficiary sought employment as an
immunologist at the University of California in Berkeley, and
submitted several letters from his colleagues at this institution.
These letters argued the excellence of the petitioner’s work, but
they emphasized what the petitioner was likely to accomplish in the
future rather than the impact he had already made on his field. In
the original case and the response to a request for evidence, the
petitioner did not submit evidence such as independent reference
letters to prove his influence outside of the universities where he
worked.
Initial Ruling: The case was denied by the USCIS on the grounds
that the national interest would not be adversely affected if a labor
certification were required. The USCIS argued that the petitioner’s
prior achievements did not justify the projected future benefits
because:
1. The petitioner has received no substantial attention outside
of the universities where he had worked or studied
2. The claims of the petitioner and his close colleagues that he
possesses “superior ability” are not sufficient to justify a
national interest waiver
Appellate Ruling: On appeal, the petitioner submitted evidence that
his work had been cited frequently by other researchers in his field.
The citation record was accepted as sufficient evidence of the
petitioner’s impact on his field.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 2
Case Type: NIW
Original Case: This NIW case was filed by a U.S. employer (the
Petitioner) that sought to hire the Beneficiary as its managing
director. The Petitioner is a non-profit organization that has
programs in cities across the United States aimed at creating job
opportunities for inner city residents. The Beneficiary’s position as
managing director would require him to develop programs for other
cities, manage and administrate a branch office of the organization,
and play a key role in organizational management and fundraising for
the organization. The Beneficiary’s background includes demonstrated
successes in the field of urban development in the United States and
overseas.
Initial Ruling: The case was denied by the USCIS, and the
adjudicator found that the Beneficiary qualified as a member of the
professions holding an advanced degree but that it had not been
established that exemption from the requirement of labor certification
would be in the national interest. The director argued that:
1. The benefit was not national in scope;
2. The National Interest Waiver is not justified by projected
benefits to a business; and
3. Possible future implementation of the beneficiary’s work is
not sufficient to justify a National Interest Waiver.
Appellate Ruling: The Petitioner filed an appeal arguing that the
Beneficiary’s work is indeed national in scope and a waiver of labor
certification is justified due to the Beneficiary’s past
achievements. AAO sustained the appeal and ruled that:
1. Although the beneficiary’s work is largely local, the local
project is the national model for the Petitioner’s projects in other
cities across the nation;
2. Since the petitioner is a non-profit organization, its goal
is not to secure its own profits;
3. Based on the widespread success and recognition of the
Beneficiary’s work, a waiver of labor certification is justified.
Result of Appealed: The Appeal was sustained and the case was
approved.
***********************************************************************
AAO Appeal Case No. 3
Case Type: NIW
Original Case: The petitioner has a PhD from a foreign university
in Nuclear Chemical Engineering. The petitioner works at the Pacific
Northwest National Laboratory, which is one of nine operated for and
funded by the Department of Energy. The letters of recommendation
submitted by the petitioner’s colleagues detail his specific
accomplishments, which have substantial merit and are necessary to
protect the environment and the public, such as the safe storage of
nuclear waste and the development of catalyst decomposition process to
decompose a highly poisonous gas. The petitioner was also served as
Principal Investigator on a major project when the original PI was on
leave.
Initial Ruling: The USCIS denied this case on the grounds that the
national interest would not be adversely affected by a labor
certification, claiming that there was insufficient evidence that the
petitioner would serve the national interest to a greater extent than
an available US worker with the same minimum qualifications. The USCIS
argued that:
1. The petitioner’s selection “by default” as PI of a major
project was insufficient to demonstrate his excellence;
2. The record did not establish that petitioner had been widely
cited.
Appellate Ruling: The Petitioner/Beneficiary appealed his case with
further evidence to show that the petitioner had been appointed as PI
for a multi-laboratory collaboration. AAO found that the petitioner’s
original appointment as the replacement PI was indeed evidence of
merit, and that the DOE was unlikely to allow a minor researcher to
fill an important research position. AAO also found that the
petitioner had published 20 articles, most of which were first-
authored, and attributed the lack of extensive citation to the fact
that most universities and laboratories do not have the resources to
research plutonium disposal. AAO ruled that the significance of the
Petitioner’s specific achievements had been well established by the
evidence, and that the lack of extensive citation did not contradict
this evidence.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 4
Case Type: NIW
Original Case: The petitioner/beneficiary, an entomologist,
submitted a number of letters of recommendation with his petition,
both from collaborators and independent references. These letters
established that he had made significant impact on his field and that
he had “made significant advances where others have failed.”
Initial Ruling: The case was denied, but the USCIS appears to have
confused the standards of Eb-1A with NIW. Specifically, the decision
includes references to “widespread recognition” and “regulatory
criteria,” which are not included in the NIW standards but are part
of the language for Eb-1A qualifications. The USCIS also included
language inconsistent with the evidence of record; for example, the
decision claims that the recommendation letters praise student rather
than the petitioner’s professional work, when the reverse is true.
Appellate Decision: AAO identifies the misapplied standards in the
original decision, and applied the NIW standards to re-evaluate the
petitioner’s impact on the field. The evidence of this establishment
includes reprint requests for the petitioners work from government
agencies and those in the agricultural industry. Based on this
evaluation of the petitioner’s work, AAO ruled that the petitioner
meets the standard for a National Interest Waiver.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 5
Case Type: NIW
Original Case: The original case provided several letters of
recommendation, including three letters from independent experts.
These letters claim that the petitioner has made a strong impact on
the field of kidney stone research, and that her significant
contributions are beyond those of her peers.
Initial Ruling: The USCIS denied the case on the grounds that the
national interest would not be adversely affected by a labor
certification. The USCIS stated that the overall importance of the
petitioner’s field is insufficient to establish that a labor
certification would adversely affect the national interest, and should
thus be waived.
Appellate Ruling: The petitioner argued that the original letters
of recommendation were from respected experts in the field, including
independent references, and that the petitioner’s achievements had
already benefited the national interest. The petitioner submitted an
additional letter from one of her original recommenders, who claims
that the petitioner made “critical contributions” and “continues to
play a key role in this research.” AAO found that thirdy-party
letters of recommendation served as independent evidence to support
the contention that the petitioner’s work had made an impact outside
of her circle of colleagues. AAO also found that this is not the
strongest possible case, largely on the basis that there is no record
of heavy citation, but that the evidence in its entirety is strong
enough to warrant approval of the petition.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 6
Case Type: I-140 NIW
Original Case: The petitioner/beneficiary had a PhD in Chemistry,
and submitted a number of letters of recommendation and copy of eleven
scientific articles he published in prestigious journals. The
recommendation letters emphasized the unique and groundbreaking nature
of his work, and one recommender called him “one of the top
scientists in the world” in his field of organic synthesis. The
petitioner also submitted evidence that his work had been cited 161
times worldwide.
Initial Ruling: The USCIS issued a request for additional evidence
that the petitioner met the standards published in Matter of New York
State Department of Transportation. The petitioner responded with a
letter from counsel, additional letters of recommendation, and further
documentation of his work. The USCIS denied the petition, stating that
the petitioner failed to prove that a waiver of the labor
certification requirement was in the national interest.
Appellate Ruling: AAO ruled that the extensive citation record is
ample evidence of the petitioner’s influential work.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 7
Case Type: NIW
Original Case: The petitioner/beneficiary has Ph.D. in thermal
science. He submitted a number of peer-reviewed papers and several
letters of recommendation, some of which were independent. The
petitioner argued that his work had actually established a fundamental
theory of thermal science.
Initial Ruling: The USCIS denied the case on the grounds that the
national interest would not be adversely affected if a labor
certification were required. The USCIS argued that:
1. The evidence fell short of establishing the significance of
the petitioner’s contributions to the field;
2. The record lacked evidence that the petitioner’s work with
his current employer had been successfully commercialized;
3. The petitioner offered no evidence that his published
articles had been heavily cited.
Appellate Ruling: AAO gives more attention to the opinions of the
petitioner’s collaborators and supervisors who claim that the
petitioner was the major contributor to the projects reported in his
published articles. AAO also addresses the concern that the
petitioner’s work with his current employer had not been successfully
commercialized, noting that the petitioner had only worked for this
company a short time. AAO ruled that while evidence of heavy citation
would be evidence in the petitioner’s favor, it is not mandatory for
a National Interest Waiver. AAO stresses the importance of reviewing
the totality of the evidence in reaching a conclusion.
Result of Appeal: The Appeal was sustained and the case was approved.
Compiled and Summarized by Susan K. Covington, Case Manager at Liu & Associates, PLLC
When a National Interest Waiver petition was erroneously denied
by the USCIS, the petitioner/beneficiary can appeal the denial to the
Administrative Appeals Office (AAO) within 30 days of the denial date.
The legal standards for a National Interest Waiver as set out in
Matter of New York State Dept. of Transportation are: (1) that the
alien seeks employment in an area of substantial intrinsic merit; (2)
that the proposed benefit will be national in scope; and (3) that the
national interest would be adversely affected if a labor certification
were required. AAO will either sustain or dismiss the appeal based on
the evidence submitted.
***********************************************************************
AAO Appeal Case No. 1
Case Type: NIW
Original Case: The Petitioner/Beneficiary sought employment as an
immunologist at the University of California in Berkeley, and
submitted several letters from his colleagues at this institution.
These letters argued the excellence of the petitioner’s work, but
they emphasized what the petitioner was likely to accomplish in the
future rather than the impact he had already made on his field. In
the original case and the response to a request for evidence, the
petitioner did not submit evidence such as independent reference
letters to prove his influence outside of the universities where he
worked.
Initial Ruling: The case was denied by the USCIS on the grounds
that the national interest would not be adversely affected if a labor
certification were required. The USCIS argued that the petitioner’s
prior achievements did not justify the projected future benefits
because:
1. The petitioner has received no substantial attention outside
of the universities where he had worked or studied
2. The claims of the petitioner and his close colleagues that he
possesses “superior ability” are not sufficient to justify a
national interest waiver
Appellate Ruling: On appeal, the petitioner submitted evidence that
his work had been cited frequently by other researchers in his field.
The citation record was accepted as sufficient evidence of the
petitioner’s impact on his field.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 2
Case Type: NIW
Original Case: This NIW case was filed by a U.S. employer (the
Petitioner) that sought to hire the Beneficiary as its managing
director. The Petitioner is a non-profit organization that has
programs in cities across the United States aimed at creating job
opportunities for inner city residents. The Beneficiary’s position as
managing director would require him to develop programs for other
cities, manage and administrate a branch office of the organization,
and play a key role in organizational management and fundraising for
the organization. The Beneficiary’s background includes demonstrated
successes in the field of urban development in the United States and
overseas.
Initial Ruling: The case was denied by the USCIS, and the
adjudicator found that the Beneficiary qualified as a member of the
professions holding an advanced degree but that it had not been
established that exemption from the requirement of labor certification
would be in the national interest. The director argued that:
1. The benefit was not national in scope;
2. The National Interest Waiver is not justified by projected
benefits to a business; and
3. Possible future implementation of the beneficiary’s work is
not sufficient to justify a National Interest Waiver.
Appellate Ruling: The Petitioner filed an appeal arguing that the
Beneficiary’s work is indeed national in scope and a waiver of labor
certification is justified due to the Beneficiary’s past
achievements. AAO sustained the appeal and ruled that:
1. Although the beneficiary’s work is largely local, the local
project is the national model for the Petitioner’s projects in other
cities across the nation;
2. Since the petitioner is a non-profit organization, its goal
is not to secure its own profits;
3. Based on the widespread success and recognition of the
Beneficiary’s work, a waiver of labor certification is justified.
Result of Appealed: The Appeal was sustained and the case was
approved.
***********************************************************************
AAO Appeal Case No. 3
Case Type: NIW
Original Case: The petitioner has a PhD from a foreign university
in Nuclear Chemical Engineering. The petitioner works at the Pacific
Northwest National Laboratory, which is one of nine operated for and
funded by the Department of Energy. The letters of recommendation
submitted by the petitioner’s colleagues detail his specific
accomplishments, which have substantial merit and are necessary to
protect the environment and the public, such as the safe storage of
nuclear waste and the development of catalyst decomposition process to
decompose a highly poisonous gas. The petitioner was also served as
Principal Investigator on a major project when the original PI was on
leave.
Initial Ruling: The USCIS denied this case on the grounds that the
national interest would not be adversely affected by a labor
certification, claiming that there was insufficient evidence that the
petitioner would serve the national interest to a greater extent than
an available US worker with the same minimum qualifications. The USCIS
argued that:
1. The petitioner’s selection “by default” as PI of a major
project was insufficient to demonstrate his excellence;
2. The record did not establish that petitioner had been widely
cited.
Appellate Ruling: The Petitioner/Beneficiary appealed his case with
further evidence to show that the petitioner had been appointed as PI
for a multi-laboratory collaboration. AAO found that the petitioner’s
original appointment as the replacement PI was indeed evidence of
merit, and that the DOE was unlikely to allow a minor researcher to
fill an important research position. AAO also found that the
petitioner had published 20 articles, most of which were first-
authored, and attributed the lack of extensive citation to the fact
that most universities and laboratories do not have the resources to
research plutonium disposal. AAO ruled that the significance of the
Petitioner’s specific achievements had been well established by the
evidence, and that the lack of extensive citation did not contradict
this evidence.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 4
Case Type: NIW
Original Case: The petitioner/beneficiary, an entomologist,
submitted a number of letters of recommendation with his petition,
both from collaborators and independent references. These letters
established that he had made significant impact on his field and that
he had “made significant advances where others have failed.”
Initial Ruling: The case was denied, but the USCIS appears to have
confused the standards of Eb-1A with NIW. Specifically, the decision
includes references to “widespread recognition” and “regulatory
criteria,” which are not included in the NIW standards but are part
of the language for Eb-1A qualifications. The USCIS also included
language inconsistent with the evidence of record; for example, the
decision claims that the recommendation letters praise student rather
than the petitioner’s professional work, when the reverse is true.
Appellate Decision: AAO identifies the misapplied standards in the
original decision, and applied the NIW standards to re-evaluate the
petitioner’s impact on the field. The evidence of this establishment
includes reprint requests for the petitioners work from government
agencies and those in the agricultural industry. Based on this
evaluation of the petitioner’s work, AAO ruled that the petitioner
meets the standard for a National Interest Waiver.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 5
Case Type: NIW
Original Case: The original case provided several letters of
recommendation, including three letters from independent experts.
These letters claim that the petitioner has made a strong impact on
the field of kidney stone research, and that her significant
contributions are beyond those of her peers.
Initial Ruling: The USCIS denied the case on the grounds that the
national interest would not be adversely affected by a labor
certification. The USCIS stated that the overall importance of the
petitioner’s field is insufficient to establish that a labor
certification would adversely affect the national interest, and should
thus be waived.
Appellate Ruling: The petitioner argued that the original letters
of recommendation were from respected experts in the field, including
independent references, and that the petitioner’s achievements had
already benefited the national interest. The petitioner submitted an
additional letter from one of her original recommenders, who claims
that the petitioner made “critical contributions” and “continues to
play a key role in this research.” AAO found that thirdy-party
letters of recommendation served as independent evidence to support
the contention that the petitioner’s work had made an impact outside
of her circle of colleagues. AAO also found that this is not the
strongest possible case, largely on the basis that there is no record
of heavy citation, but that the evidence in its entirety is strong
enough to warrant approval of the petition.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 6
Case Type: I-140 NIW
Original Case: The petitioner/beneficiary had a PhD in Chemistry,
and submitted a number of letters of recommendation and copy of eleven
scientific articles he published in prestigious journals. The
recommendation letters emphasized the unique and groundbreaking nature
of his work, and one recommender called him “one of the top
scientists in the world” in his field of organic synthesis. The
petitioner also submitted evidence that his work had been cited 161
times worldwide.
Initial Ruling: The USCIS issued a request for additional evidence
that the petitioner met the standards published in Matter of New York
State Department of Transportation. The petitioner responded with a
letter from counsel, additional letters of recommendation, and further
documentation of his work. The USCIS denied the petition, stating that
the petitioner failed to prove that a waiver of the labor
certification requirement was in the national interest.
Appellate Ruling: AAO ruled that the extensive citation record is
ample evidence of the petitioner’s influential work.
Result of Appeal: The Appeal was sustained and the case was approved.
***********************************************************************
AAO Appeal Case No. 7
Case Type: NIW
Original Case: The petitioner/beneficiary has Ph.D. in thermal
science. He submitted a number of peer-reviewed papers and several
letters of recommendation, some of which were independent. The
petitioner argued that his work had actually established a fundamental
theory of thermal science.
Initial Ruling: The USCIS denied the case on the grounds that the
national interest would not be adversely affected if a labor
certification were required. The USCIS argued that:
1. The evidence fell short of establishing the significance of
the petitioner’s contributions to the field;
2. The record lacked evidence that the petitioner’s work with
his current employer had been successfully commercialized;
3. The petitioner offered no evidence that his published
articles had been heavily cited.
Appellate Ruling: AAO gives more attention to the opinions of the
petitioner’s collaborators and supervisors who claim that the
petitioner was the major contributor to the projects reported in his
published articles. AAO also addresses the concern that the
petitioner’s work with his current employer had not been successfully
commercialized, noting that the petitioner had only worked for this
company a short time. AAO ruled that while evidence of heavy citation
would be evidence in the petitioner’s favor, it is not mandatory for
a National Interest Waiver. AAO stresses the importance of reviewing
the totality of the evidence in reaching a conclusion.
Result of Appeal: The Appeal was sustained and the case was approved.