Recent AAO National Interest Waiver Decisions Show Continuing Restrictive Trend
By Stephen Yale-Loehr and Lillian Tsu*

We recently reviewed over 50 national interest waiver (NIW) decisions decided by the INS’ Administrative Appeals Office (AAO) between September 1999 and June 2000. Of those cases, only 13 were approvals; the others were all denials or remands.

As background, the NIW falls within the employment-based second (EB-2) immigrant visa classification. That category is reserved for people with an advanced degree or exceptional ability. Most people seeking classification in that category must undergo a process known as labor certification. That process can be time consuming and difficult to navigate. The Immigration and Nationality Act (INA) allows people in the EB-2 category to avoid or "waive" the labor certification requirement if their work is in the national interest. See generally 3 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 39.04[4][a] (rev. ed. 2000).

Neither the INA nor Immigration and Naturalization Service (INS) regulations define the term "national interest." Over the years since its enactment in 1990, more and more people applied for NIWs. The INS believed that many of the applications were filed by foreign nationals of average abilities who merely wanted to avoid the labor certification process and who happened to be working in a field of national importance. In response to the perceived growing abuse of the NIW category, in 1998 the INS published a precedent decision called Matter of New York State Dept. of Transportation, Interim Decision No. 3363 (Acting Assoc. Comm’r, Programs, Aug. 7, 1998) (NYSDOT). That case set forth a three-part test for eligibility for an NIW: (1) the person must be working in an area of "substantial intrinsic merit," (2) the proposed benefit must be "national in scope" and (3) "the petitioner seeking the waiver must persuasively demonstrate that he/she will serve the national interest to a substantially better degree than would an available U.S. worker having the same minimum qualifications."

For an overview of how to qualify for national interest waivers since NYSDOT, see http://www.millermayer.com/resources/immigrant/immigrant9cont.htm.

Generally speaking, the first two tests are easy to satisfy. Most NIW claims founder on the third test. NYSDOT failed to specify what would constitute proof that an alien will serve the national interest to a substantially greater degree than would an available U.S. worker with the same minimum qualifications.

Recent AAO decisions have somewhat fleshed out the requirements to meet NYSDOT’s third prong. In particular, the AAO has emphasized that meeting the third prong requires a lasting and substantial effect of the alien’s contributions outside of his/her immediate community. The nature of the required proof in this regard differs from occupation to occupation. For example, with respect to researchers, the AAO has attached great importance to (1) letters of support from scientists who have not collaborated with or supervised the alien (Matter of [name not provided], File No. [not provided], Nebraska Service Center (AAO Mar. 21, 2000); Matter of [name not provided], File No. [not provided], Vermont Service Center (AAO Feb. 14, 2000); Matter of [name not provided], File No. EAC 98-070-50114, Vermont Service Center (AAO June 21, 1999)); (2) the citation record of the beneficiary (Matter of [name not provided] File No. WAC 98-131-50087, California Service Center (AAO Apr. 6, 1999); Matter of [name not provided], File No. EAC 98-070-5006, Vermont Service Center (AAO June 21, 1999)); and (3) anonymous peer reviews of the beneficiary’s manuscripts (Matter of [name not provided], File No. EAC 98-126-53308, Vermont Service Center (AAO July 19, 1999)).

A second requirement outlined by the AAO is that the beneficiary must demonstrate that his or her specific contributions show a substantial track record of nationally significant achievements, rather than simply an impressive academic record. Matter of [name not provided], File No. 98-220-52661, Vermont Service Center (AAO Apr. 27, 2000), Matter of [name not provided], File No. [not provided], California Service Center (AAO Sept. 27, 1999).

Third, the AAO decisions favor petitions that cited specific examples of prior achievements rather than mere promises of possible future benefits.

Of the many petitions denied by the AAO, most lacked sufficient evidence establishing claims of wide recognition of the applicant’s work within his field of expertise. In addition, the AAO repeatedly emphasized that NIW petitions should explain why the applicant sought to avoid the labor certification process. The AAO dismissed general excuses such as inconvenience. But it found persuasive one argument that an applicant’s visa would expire during the time needed to process a labor certification request.

Following are summaries of 21 of the more interesting recent AAO NIW decisions, categorized broadly by type of career:

Careers in Business

Matter of [name not provided]

File No.: [not provided], Vermont Service Center (AAO Jan. 10, 2000)

Holding: NIW approved for financial analyst

The AAO approved the applicant’s request for a NIW, concluding that the testimony from a wide range of expert witnesses from the financial community sufficiently demonstrated that the applicant’s work "had an impact which substantially exceeds what could normally be expected of a similarly trained and experienced professional in her field." The AAO’s determination relied heavily on the testimony of witnesses "with varying degrees of connection" to the applicant. While the director originally denied the applicant’s request for a NIW, stating that the record "does not establish past or prospective national benefit arising from the [applicant’s] work," the AAO reversed, deferring to the letters of support from the expert witnesses who attested that in the "real world" of finance as well as in academia the applicant’s work rates very highly.

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Jan. 27, 2000)

Holding: NIW denied for director of wireless network planning

The AAO approved the applicant’s claim to qualification as a member of a profession holding an advanced degree, but it denied the applicant’s request for a NIW. The AAO stressed that the record did not provide sufficient evidence that the work of this particular applicant created national benefits beyond that which could have been made by a fully qualified U.S. worker. Despite letters of support submitted by a Congressman and a Senator from the applicant’s state and claims that the applicant worked to deliver a wide range of affordable telecommunications and information services across all markets, the AAO determined that the record lacked clear evidence of the applicant’s individual contributions that would have national implications.

Matter of [name not provided]

File No.: [not provided], Vermont Service Center (AAO Jan. 24, 2000)

Holding: NIW denied for international trade advisor

The AAO held that the applicant could not demonstrate that her particular work merited an NIW. While the applicant claimed that her background made her uniquely qualified at her firm, the AAO speculated that an unknown number of other auditors in her firm and throughout the world undoubtedly possessed the same skills. Thus, the applicant lacked the specialization and individual impact to warrant the grant of an NIW. Further, the AAO noted that the record lacked evidence of past accomplishments that might indicate a potential future contribution towards the national interest.

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Mar. 21, 2000)

Holding: NIW approved for chemist holding a Master’s degree working at pharmaceutical company

The AAO concluded that the applicant’s work served the national interest and that the applicant’s particular contributions had been acknowledged beyond his own circle of colleagues. Of particular importance, the decision noted that the record cited a sufficient number of past accomplishments to demonstrate a track record of achievement rather than simply "an impressive academic record with no practical results." Thus, the grant of NIW was not solely based on speculative future contributions. In addition, the AAO found that the applicant’s argument explaining that he sought to avoid labor certification because his visa would likely expire before such an application could be processed to be somewhat persuasive in this case.

Matter of [name not provided]

File No.: [not provided], California Service Center (AAO Sept. 27, 1999)

Holding: NIW denied for research scientist at health care company

The AAO held that the applicant could not prove that his work was of greater national importance than that of others performing comparable research. While the AAO found that the applicant’s research possessed substantial intrinsic merit and that the applicant’s position at a leading research firm could produce national benefits, the evidence did not attest to the unique and essential contributions of this particular individual. Despite letters of support claiming that the team of researchers with whom he worked relied heavily upon the applicant’s particular expertise, the AAO stressed that these letters could not be given much weight because they were written by people who had extensive personal contact with the applicant. The evidence in the record needed to establish that the work done by the applicant himself was significant enough to be in the national interest.

The AAO also questioned why labor certification could not have adequately served the applicant’s needs in this case. The AAO held that to avoid labor certification, the record must provide a legitimate explanation as to why the applicant sought to avoid this step.

Careers in Medicine

Matter of [name not provided]

File No.: [not provided], Texas Service Center (AAO Apr. 24, 2000)

Holding: NIW approved for consultant and lecturer of extraordinary ability specializing in infant care

The AAO held that the applicant’s past record of national impact in her field justified expectations of future accomplishments. The record indicated that the applicant’s work already had a demonstrated national impact in her native country of Colombia, where she was a visible figure promoting her cause. This past record of applicant’s initiative and dedication to her work corroborated the petition’s claims that the applicant will continue to provide major contributions in her field in this country.

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Mar. 7, 2000)

Holding: NIW approved for postdoctoral researcher at the Salk Institute in La Jolla, California

The AAO held that the applicant submitted persuasive evidence that his research was of fundamental importance to his field of study to a significantly greater extent than what is normally encountered in the field. The decision noted that despite the lack of independent testimony in the record, the applicant sufficiently demonstrated the importance of his own work by submitting letters from expert witnesses who attested to the "ground-breaking" nature of his findings and the immediate practical impact of these findings on the field.

Matter of [name not provided]

File No.: EAC 99 019 53051, Vermont Service Center (AAO June 15, 2000)

Holding: NIW approved for postdoctoral research fellow working on a cure for multiple sclerosis

The AAO held that the totality of the evidence in the record demonstrated that the applicant made significant and recognized contributions to his field of expertise and that his involvement was crucial to the continuation of the research. The decision also noted that a letter of support written by the applicant’s supervisor who won the Nobel Prize for Medicine in 1996 bore substantial, although not conclusive, weight. Of particular importance, the AAO overruled the service center’s decision, stating clearly that while an applicant must show that his accomplishments could not be achieved by an equally qualified U.S. worker, the applicant does not "specifically [need to show] that he has had a greater impact than any other single researcher." Thus, the AAO found that the service center’s requirement that the applicant demonstrate how his abilities exceed those of every other researcher in his field to be unreasonable and unsupported by the statute.

Careers in Academia/Teaching

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Jan. 10, 2000)

Holding: NIW approved for research associate with Ph.D. seeking to develop a drug to stop preterm labor

The AAO held that the applicant’s letters of support provided sufficient indication of past achievements to justify the applicant’s request to waive labor certification. While the AAO admitted that the applicant’s petition "is not without its flaws and weaknesses," the letters from other researchers who denied knowing the applicant personally and who claimed that the applicant’s research prompted them to initiate their own research projects persuaded the AAO to grant the NIW.

Matter of [name not provided]

File No.: EAC 99 109 52400, Vermont Service Center (AAO Apr. 27, 2000)

Holding: NIW approved for assistant professor of reproductive biology

The AAO held that testimony from established researchers who knew the applicant mostly from her published work sufficiently demonstrated that the applicant herself took the lead in several projects that had garnered significant, independent, international attention. The decision also noted that many of the letters of support proved that the impact of the applicant’s work stretched well beyond the circle of colleagues who had worked with her directly. Finally, the AAO noted that the record clearly testified to the importance of the applicant’s individual contributions to the research. The AAO found that the applicant not only "demonstrated that she is best qualified for the position she seeks; rather, she has shown that research of international importance simply would not continue in her absence."

Matter of [name not provided]

File No.: EAC 98 220 52661, Vermont Service Center (AAO Apr. 27, 2000)

Holding: NIW approved for biological researcher with medical degree working for a university

The AAO held that the record sufficiently demonstrated that the important research that the applicant worked on (studying the effects of proteins involved in fighting infection) would not continue without the applicant’s continued involvement. While the decision noted that the applicant’s petition could have been stronger, the inclusion of some independent testimony indicating some degree of international impact of the applicant’s work justified the grant of the NIW. In addition, the AAO cited the importance of testimony in the record referencing specific, critical contributions that the applicant has already made.

Matter of [name not provided]

File No.: [not provided], Vermont Service Center (AAO Feb. 14, 2000)

Holding: NIW approved for doctoral student conducting research on semiconductors

The AAO held that the record demonstrated a strong consensus regarding the importance of the applicant’s work and the applicant’s unique qualifications to carry on such work. Although the petition lacked any evidence of a past record of significant contributions, the decision noted that "highly qualified independent witnesses have consistently attested to the [applicant’s] key role in developing new technology which, while not yet in commercial use, has a broad range of potential applications." Of particular importance, the AAO noted that the applicant’s work did not depend heavily upon research by others or on unpredictable conditions that may or may not come to pass. Thus, the future benefits of the applicant’s research appeared inevitable and not merely speculative.

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Jan. 10, 2000)

Holding: NIW denied for environmental engineering research assistant

The AAO held that the applicant’s petition lacked sufficient evidence of individual achievement. The applicant worked on projects perfecting the treatment of drinking water. The AAO emphasized that "the overall importance of an alien’s field of endeavor is not sufficient to qualify that alien for a national interest waiver." Despite testimonial letters from three national experts in the treatment of drinking water, the AAO concluded that the applicant mainly served as "a member of a team" of researchers. He could not establish that his particular contribution would be more important than others in the field. The applicant attempted to provide documentary evidence of his individual impact in his field. But his evidence failed to identify specific institutions where his ideas had been implemented and failed to provide documentary evidence from professors at these other institutions verifying claims of recognized, individual achievement. The AAO also noted that the applicant’s record failed to explain why he sought to avoid the normal labor certification procedure, despite the fact that he had a job offer from a U.S. employer.

Matter of [name not provided]

File No.: [not provided], California Service Center (AAO Sept. 27, 1999)

Holding: NIW denied for biophysics researcher

The AAO denied the applicant’s claim to qualification as a member of profession holding an advanced degree because at the time he filed his petition, he had not yet earned his doctorate. Since he did not hold an advanced degree when he filed his petition, the AAO ruled that the doctorate could not help establish his eligibility in this proceeding. The AAO also found that the record did not provide sufficient evidence to designate the petitioner as an alien of exceptional ability. Thus, the applicant did not qualify for a NIW.

The AAO also denied the NIW because the applicant could not demonstrate that his work significantly set him apart from other dedicated researchers in his field. While the evidence clearly established the applicant as a skilled researcher whose abilities were in demand at a variety of prestigious institutions, the AAO noted that the record did not support the contention that the applicant’s work had a significant impact on his field. Without evidence of well received, past achievements, the AAO concluded that the applicant’s NIW petition was premature at this time.

Matter of [name not provided]

File No.: A77 850 432, Nebraska Service Center (AAO Mar. 21, 2000)

Holding: NIW denied for medical researcher

The AAO held that the applicant could not prove the significance of her particular contribution to her field of expertise. The applicant submitted letters of support from independent experts who had never worked with the applicant personally and that attested to the scope of her reputation. But the AAO found that most of these letters only stressed the general importance of the applicant’s research. The national importance of one’s field of study does not establish the importance of one’s work in particular, held the AAO.

Additionally, the applicant asserted that she sought a waiver of the labor certification requirement because she wanted to be free to change employers, which would be impossible while labor certification was pending. The AAO dismissed this excuse, claiming that the issue of inconvenience was not a legitimate reason to avoid labor certification.

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Mar. 21, 2000)

Holding: NIW denied for combustion researcher

The AAO held that the applicant did not establish that his work garnered national or international recognition. The AAO stressed that letters of support written by people who all have collaborated with the applicant to some extent did not significantly bolster claims of the importance of the applicant’s work. Additionally, the AAO noted that witness testimony that asserted that the applicant had earned international recognition must be accompanied by corroborating evidence specifying what led the witness to that conclusion. The AAO also noted that the applicant’s impressive publication record did not support assertions of national acclaim. According to the AAO, "the best judgement of the petitioner’s impact is not how many papers he has published, but how much attention those works have attracted." Thus, in determining these NIW cases, AAO sought evidence suggesting that the applicant’s work and reputation had expanded beyond the scope of his/her own personal scope of influence.

The applicant also claimed that he sought a waiver of the labor certification requirement because many potential employers would not offer him employment unless he was a permanent resident. The AAO rejected this argument, noting that before it would consider this claim, the applicant must provide letters from potential employers verifying this assertion.

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Sept. 27, 1999)

Holding: NIW denied for sociology lecturer/research associate

The AAO held that the applicant’s work did not offer significant national benefits. The AAO stressed that a petition cannot rely on speculative future benefits, stating that "research that may lead to results that benefit the national interest are not sufficient" to warrant a grant of a NIW. With regard to the impact of the applicant’s accomplishments, the AAO concluded that the applicant’s work only affected a small segment of the population, i.e., people in the Pacific Northwest with interest in Chinese cultural services. This localized influence did not suggest national importance. Additionally, the AAO stated that the applicant’s publications and presentations were not dispositive towards establishing an "international reputation for excellence." The record must contain evidence attesting to the influence that the applicant’s work had on individuals who did not personally know the applicant.

The AAO also noted that evidence of a job offer raised questions as to why the applicant sought to avoid labor certification.

Matter of [name not provided]

File No.: [not provided], California Service Center (AAO Jan. 31, 2000)

Holding: NIW denied for bilingual teacher of elementary and high school students

The AAO denied the applicant’s claim to qualification as an alien of exceptional ability, ruling that: (1) ongoing studies did not fulfill the regulation, which calls for a degree, diploma, or certificate in the area of exceptional ability because "this criterion is limited to degrees which the petitioner already held when she filed the petition"; (2) full-time employment in a field other than the applicant’s field of expertise do not count towards the 10-year requirement needed to establish exceptional ability; and (3) letters of reference from employers and colleagues do not constitute evidence of recognition for achievements and significant contributions to the field.

The AAO also held that the applicant’s claims of a worker shortage in her area of expertise did not qualify her for a NIW. The AAO stressed that a shortage of qualified workers "is a factor to be considered in obtaining rather than waiving a labor certification."

Matter of [name not provided]

File No.: EAC 98 234 53354, Vermont Service Center (AAO Mar. 7, 2000)

Holding: NIW denied for preschool teacher

The AAO held that the applicant could not support claims of national recognition for her work. The AAO found that while the applicant asserted that she played a key role in developing a preschool program for homeless children that had become the model for such programs nationwide, the record did not contain documentation of any comparable program that had been modeled after the applicant’s program. Also, the applicant could not prove that her work had nationwide influence simply because her students "represent America’s most economically disadvantaged and educationally deficient population." The influence of such classroom instruction was limited to those students who the applicant instructed. Thus, the AAO concluded that while the applicant’s influence in her school far surpassed that of other teachers, this did not verify her claim of being a national reformer. According to the AAO, such localized recognition, no matter how great, does not warrant the grant of a NIW.

The AAO also stressed that honors accrued after the filing of the original application could not be considered in its determination. While the applicant claimed to be the director of her school’s program for homeless children, she did not attain this position before the time of filing. Thus, the new position could not be considered because "any finding of eligibility must rest on the petitioner’s qualifications as of the petition’s filing date."

Careers in the Arts

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Mar. 7, 2000)

Holding: NIW denied for musician/lecturer

The AAO held that while the evidence indicated that the applicant possessed superior skill, exceptional ability alone could not suffice to warrant a NIW. The AAO concluded that recognition concentrated within the bounds of the applicant’s university did not demonstrate one’s national impact or influence. Thus, letters of support written by experts who had either taught or worked with the applicant did not help to establish the wide cultural or educational impact of the applicant’s work. The AAO suggest some methods to demonstrate one’s impact or influence, including: publication of a well-received boo; evidence that several prestigious schools had offered the applicant a tenure-track position; commercial success of the applicant’s performances; or letters from witnesses who could explain what impact the applicant’s coaching work had or will have on the vast majority of musicians who would never have the opportunity to study under him.

Matter of [name not provided]

File No.: [not provided], Nebraska Service Center (AAO Jan. 10, 2000)

Holding: NIW denied for musician/opera singer

The AAO denied the applicant’s claim to qualification as an alien of exceptional ability, ruling that: (1) the diploma cited by the applicant appeared to be equivalent to a U.S. high school degree, which did not demonstrate that the applicant was of the level of expertise above what was ordinarily encountered in the field; (2) the applicant’s membership in professional associations seemed to be based on national origin rather than on exceptional ability; and (3) the applicant could not satisfy the requirement of at least ten years of full-time experience if she had only been employed on a part-time basis since 1972.

The AAO also held that recognition of the applicant’s achievements must be more than just local and secondary. The applicant’s popularity within the Chicago Polish-American community did not prove her assertions of exceptional national or international standing. Similarly, mere participation in public performances did not demonstrate well-recognized exceptional ability unless the participant was the featured performer. While the evidence might have established that the applicant had a successful career in the arts, the AAO found this to be insufficient to demonstrate that the applicant’s music had any lasting or substantial effect outside of her local community.

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Bio information: Stephen Yale-Loehr (mailto:syl@millermayer.com) is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by Matthew Bender & Company, Inc. (http://www.bender.com/) He also teaches immigration law and refugee law at Cornell Law School, and is of counsel at True, Walsh & Miller (http://www.millermayer.com) in Ithaca, NY. He also co-writes a regular column on immigration law for the New York Law Journal. Lillian Tsu is a law student at Cornell Law School.

For further information on these or any other immigration matter, please contact Miller Mayer.