NIW: Obtaining Green Card Through Petitioner’s Influence in the Field
AAO 2016 First Quarter NIW Decisions Analysis
National Interest Waiver (NIW) is a United States immigrant petition that can be filed by foreign nationals independently if certain requirements can be met by such foreign nationals. Unlike the Labor Certification process, NIW does not require employer’s sponsorship, but does require, in most cases, that the petitioning foreign national holds a master or higher degree in the related field. Additionally, NIW petitioners have to satisfy a three-pronged test to secure an approval of an NIW petition. First, the petitioner must seek employment in an area of substantial intrinsic merit; secondly, the proposed benefit will be national in scope; and lastly, the petitioner must serve the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications. At present, two United States Citizenship and Immigration Service (USCIS) service centers will accept, review and make decisions to NIW petitions. In the event of a denial by the service center, petitioners may appeal to the Administrative Appeal Office (AAO).
The AAO is an appellate office within USCIS that has jurisdiction to review the decisions made by USCIS service centers or district offices in various immigration benefits such as H1B petitions, EB1A-B petitions, EB-5 petitions and NIW petitions. The AAO is located in Washington D.C. Its decision in the reviewed case is binding over lower USCIS office’s decision. For denied immigration applications or petitions, normally the AAO is the final forum within USCIS where petitioners or applicants can seek to have the wrongful decisions corrected. Most of the AAO decisions are unpublished, which means they are not treated as precedent, and therefore are not binding to future cases with similar issues. AAO decisions serve as guidance to service centers and district offices. Analyzing AAO decisions is helpful to understand its interpretation and application of the immigration law to issues involved. It can provide valuable lessons to foreign nationals who are preparing or planning to file NIW petitions.
In the first quarter of 2016, the AAO has reviewed a total of 12 NIW appeals to the denials rendered by the Service Centers. Among them nine are from the Texas Service Center and three are from the Nebraska Service Center. The occupations of these cases include teacher, author, researcher, physician, biologist, cardiologist, environmental health and safety specialist, and operations training advisor, etc. The AAO dismissed eleven of the twelve appeals and sustained only one.
The following is a categorical review and analysis of the twelve decisions by the AAO.
- Intrinsic Merit
This is the requirement that can be easily met. All twelve occupations the foreign nationals held in the petitions were first found by the Service Centers to be employment in an area of substantial intrinsic merit. The AAO is in agreement with Service Centers on such findings. However, this requirement should not be mixed with the third requirement for NIW eligibility. The AAO clearly indicates that simply engaging in the field of importance will not establish the eligibility of NIW. Thus, general statements regarding the importance of a given field or endeavor, or the urgency of an issue facing the U.S. can not by themselves establish that an individual benefits the national interest by virtue of engaging in the field.
- National Interest in Scope
On this requirement, six petitioners requested the AAO to reverse the Service Centers’ negative finding. Four of them were teachers, one was a registered nurse and one was a cardiologist. The AAO affirmed the Service Center in four cases where petitioners were a high school math teacher, a special education teacher, a high school Spanish teacher and a registered nurse. In each of the four cases, the AAO cited NYSDOT to support its affirmance.
The AAO did reverse Service Centers’ findings on this requirement in two cases. The first case was a petition filed by an educator and education advocate. The AAO agreed with the Service Center that the proposed benefit brought by a classroom teacher could not be national in scope. AAO, however, did not stop there. Petitioner also submitted substantial evidence about his education advocate activities, such as a grant proposal, letter from Congressman Office, email exchanges, and articles. Based on the submission, the AAO withdrew the Service Center’s determination and found petitioner’s work as an education advocate was national in scope.
The second case was a petition filed by a physician in cardiology. The AAO did not agree with the service center on this issue, and did find petitioner’s cardiology research had national scope as such research is disseminated to other physicians through conferences and medical journals.
- Foreign National Serving the National Interest to a Greater Degree
This is the most difficult requirement for NIW petitioners. In all twelve cases, Service Centers concluded that petitioners did not show that they could serve the national interest to a greater degree than would an available U.S. worker with the same minimum qualifications. Basically, it meant the petitioners in these twelve cases did not demonstrate that they have some degree of influence in the field as a whole. The AAO affirmed Service Centers in eleven cases and reversed only one case on this issue. Following are some primary grounds on which the AAO found the petitions did not satisfy this requirement.
First, potential benefit alone cannot satisfy the third requirement. The law requires that petitioner demonstrate a past record to justify projection of future benefit to the national interest. A statement by petitioner indicating the potential significance of the research and manuscript to be submitted cannot demonstrate petitioner’s influence. Potential significance of research that is not published or not in actual use can hardly support the actual influence. In order to prove the influence or impact, petitioners normally would provide reference letters from experts, advisors or colleagues in the field. However, Reference letters only describing future benefit will be given little weight.
Secondly, the benefit has to reach beyond Petitioner’s own institution. Because the petitioner must demonstrate a past history of achievement with some degree of influence on the field as a whole, an accomplishment that is only confined to petitioner’s institution will not suffice to warrant an approval of NIW petition.
Thirdly, establishing the influence or impact in the field as a whole is the key to satisfying the third requirement. Petitioner must present evidence demonstrating that his or her work has had a wider effect on the industry, such as his or her methods, procedures, and protocols affecting the field as a whole. A substantial number of favorable independent citations for an article is an indicator that other researchers are familiar with the work and have been influenced by it. For a lack of or modest citation history, NIW petitioner must provide the explanation and other documents to show the influence or impact in the field as a whole.
Fourthly, factors that are routinely considered by the labor certification process should not be used by foreign nationals to support an NIW petition. They include: the shortage of work force in the field; unique background of the petitioner; particular training or courses petitioner has taken; particular skill or certificates possessed by the petitioner. Because all these factors can be included in the labor certification application, any factual assertions raised by a petitioner regarding above factors will undercut the strength of his or her eligibility for NIW.
The three-prong test for NIW eligibility is a process of exclusion that makes the final group of petitioners eligible for the benefit. The group consists of petitioners who can demonstrate some degree of influence or impact in the area as a whole. Though scientists or researchers can readily establish the national scope of benefit they bring, professionals like teachers or doctors, whose benefit may not reach the national level at first appearance can still satisfy the second requirement by showing his or her efforts beyond the institution, [and the disseminated benefits cross the nation such efforts have produced through conferences, publications and communications with peers.] This needs to be reworded.
For scientist or research NIW petitioners, citation history still stands as a reliable factor for Service Centers to evaluate the influence. In the absence of an impressive citation record, reference letters, especially from independent resources, become more important to illustrate petitioner’s influence. The best reference letters should discuss petitioner’s established impact in the area as a whole, explain petitioner’s modest citation history (if applicable), and or corroborate petitioner’s role in the article or project not listed as lead scientist, etc. The letters should not simply emphasize petitioner’s qualifications as an employee, how important the industry is, or how the industry is in shortage of talents like petitioner. Anything other than a discussion of petitioner’s influence in the field will not address NIW’s core issue: petitioner’s greater benefit to the U.S.
August 25, 2016
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美国移民法允许符合相关条件的申请人独立向移民局递交国家利益豁免(National Interest Waiver, or NIW)申请。有别于通过劳工认证程序(PERM, or Labor Certification Process)的移民申请，国家利益豁免申请不需要有雇主的全程支持。但申请人一般要具备相关领域的硕士或博士学位。还需要同时满足另外三个要求，申请才能获得批准。第一，申请人从事的职业具有内在的价值；第二，申请人创造的益处可以扩散到全美国范围；第三，与具备相同基本资质的一般美国同行相比，申请人会给美国带来更多的益处。目前，所有国家利益豁免的申请由移民局的两个服务中心(Service Centers)受理并作出决定。对不符合要求的申请，服务中心会给予拒绝。如果申请人不同意， 可以向移民局的行政上诉办公室(Administrative Appeal Office, or AAO)提请上诉。
在2016年的第一季度，上诉办公室共审阅了十二个由服务中心否定的国家利益豁免的上诉案。这当中九个上诉是来自得克萨斯服务中心(Texas Service Center, or TSC)的决定，三个来自内布拉斯加服务中心(Nebraska Service Center, or NSC)。这些上诉案涉及的申请人的职业包括：教师，作家，研究人员，医生，生物科学家，心脏病学家，环境健康和安全专家以及运营培训辅导员等。经过审查，上诉办公室驳回了其中的十一个上诉，仅推翻一例内布拉斯加服务中心的决定。
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