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刘宗坤律师专栏

国家利益豁免(NIW)上诉案例选辑

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.

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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.
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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.

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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.
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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.
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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.
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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.
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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.

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