By Sean Koehler and Stephen Yale-Loehr[2]

Introduction

In 1998 the former Immigration and Naturalization Service (INS) published a precedent decision restricting the use of national interest waivers (NIWs) as a way to bypass labor certification for individuals in the employment-based second (EB-2) immigrant visa preference category. In Matter of New York State Department of Transportation (NYSDOT),[3] the INS set forth a three-part test that foreign nationals must satisfy to obtain an NIW. To meet the NIW threshold, the petition must show that:

• The foreign national’s work is in an area of substantial intrinsic merit;
• The proposed benefit of the foreign national’s work is national in scope; and
• The foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

In NYSDOT, the INS held that the petitioner met the first two prongs, finding that the work was in an area of substantial intrinsic merit and that the proposed benefit of such work was national in scope. However, the INS held that the petitioner failed to establish that he would serve the national interest to a substantially greater degree than that of his U.S. citizen colleagues. The INS’s decision evidences a belief that the labor certification process requirement, which purports to protect U.S. jobs for U.S. workers, should be bypassed in only rare instances.

Generally speaking, the third prong of an NIW case is the most difficult to satisfy. The petitioner must show that he or she presents a national benefit that is substantially greater than his or her U.S. citizen colleagues in the same field. For researchers, an important part of satisfying this requirement is establishing that the researcher’s work has had a measurable influence in the larger field.

This article focuses on evidentiary issues involved in successfully demonstrating the measurable influence of a researcher’s work. Issues pertaining to qualification for the EB-2 classification generally, the satisfaction of the first two prongs of the NYSDOT test, and the fulfillment of the third NYSDOT prong outside the demonstration of measurable influence, are beyond the scope of this article.[4]

Nine Recent AAO decisions

We reviewed nine NIW cases decided by the Administrative Appeals Office (AAO).[5] In each of the cases, decided between October 2003 and March 2004, the regional service center director found that the petitioner failed to qualify for a NIW. Five of the petitioners won their appeal to the AAO; four lost. The cases are summarized below in chronological order of decision. Following the summaries we discuss trends discernable from the decisions.

In the reviewed decisions, the AAO focused on six issues in its discussion of evidence presented to demonstrate measurable influence: (1) publication records; (2) citation records; (3) the novelty of research and patents on research discoveries; (4) objective recognition; (5) witness letters; and (6) forms of evidence associated with extraordinary ability standards.

Ph.D. Candidate and Research Assistant, Agricultural Engineering

Matter of [Name not Provided], File No. [Not Provided] (AAO Oct. 23, 2003) (NIW denied)

The AAO dismissed an appeal of a Nebraska Service Center (NSC) decision by a Ph.D. candidate and research assistant in the Department of Agricultural Engineering at the University of Illinois at Urbana-Champaign (UIUC). The research assistant investigated ways to use information technology to give farmers tools to optimize productivity. The AAO determined that the evidence did not establish that the research associate’s past record of achievement was at a level that would justify a waiver of the job offer requirement. Of note were the witness letters, publication record, citation record, and patent history provided.

Evidence Submitted

The petitioner submitted several witness letters from professors at institutions such as the University of Illinois at Urbana-Champaign and Zhejiang University in China. The witnesses praised the petitioner’s ongoing research. One professor wrote:

[The petitioner’s] current research on information technology in agriculture holds great promise to significantly improve the economy and environment… I certainly believe that [the petitioner] will make a significant contribution in his field that will serve substantially the national interest of the U.S.

As further demonstration of the impact of his work, the petitioner provided evidence that he had published six papers in international journals, over ten papers in international conferences, and had submitted three additional papers for publication. The petitioner also included two patent applications and evidence that his work had been cited eight times.

The Denial

The AAO held that the evidence did not demonstrate that the petitioner’s work had an influence on the field beyond his immediate projects. In this case, the small number of citations to the researcher’s work and the testimonials alluding mostly to the future benefit of the work hurt the petition.

The AAO noted that one testimonial in particular pertained to “the expectation of future results rather than the petitioner’s specific past research achievements.” The AAO added, “a petitioner cannot file a petition under this classification based on the expectation of future eligibility.” The AAO also found that the publication and citation information provided were not adequate to demonstrate a measurable impact in the field.

Although the petitioner provided evidence that he had published six papers in international journals and over ten papers in international conferences, and had submitted three papers that were being prepared for publication, the decision observed that the record:

contains no evidence that the presentation or publication of one’s work is a rarity in the petitioner’s field, nor does the record sufficiently demonstrate that independent researchers have heavily cited or often relied upon the petitioner’s findings in their research.

Regarding the eight citations presented by the petitioner in this case, the AAO found that they were “not sufficient to demonstrate that his findings have significantly influenced his field.” The AAO noted that two of the eight citations presented were self-citations by the petitioner’s research collaborators, which the AAO found could not “demonstrate the response of independent researchers.”

Finally, the AAO discounted the weight of patent applications in demonstrating influence:

[T]he record contains no evidence showing that any of the patents were approved by the U.S. Patent and Trademark Office (USPTO), licensed out by UIUC, or used commercially as of the petition’s filing date. We note here that anyone may file a patent application with the USPTO, regardless of whether the invention constitutes a significant contribution. Even if the petitioner were to provide evidence of an approved patent, it would carry little weight in this matter. Of far greater significance in this proceeding is the importance to the field of the petitioner’s innovations. The granting of a U.S. patent documents only than an innovation is original. According to statistics released by the USPTO, which are available on its website at www.uspto.gov, that agency has approved over one hundred thousand patents per year since 1991. In 2001, for example, the agency received 345,732 applications and granted 183,975 patents.

Postdoctoral Research Associate, Cancer Biology

Matter of [Name not Provided], File No. WAC 02 032 55546 (AAO Nov. 18, 2003) (NIW denied)

The AAO dismissed an appeal of a California Service Center (CSC) decision by a postdoctoral research associate at the Sidney Kimmel Cancer Center. The research associate, who received his master’s degree in medicine from Hubei Medical University in China, had research experience with the herpes virus, tumor biology, biochemistry, and molecular biology, and had two years of clinical experience. The AAO determined that the evidence did not establish that the research associate’s past record of achievement was at a level that would justify a waiver of the job offer requirement. Of note were the witness letters, publication record, and citation record.

Evidence Submitted

The petitioner submitted numerous witness letters from professors at various institutions, including the Sidney Kimmel Cancer Center and the Scripps Research Institute. Each witness praised the petitioner’s ongoing research. In discussing the petitioner’s cancer research, one professor wrote:

The understanding of these gene products that have only recently come to light and the development of an applied application to cancer are on the cutting edge of cancer research in this country. Thus, [the petitioner] has an opportunity to make an important contribution.

Another professor stated that the petitioner’s findings “could be important for potential therapeutics which aim at inhibiting the blood supply to tumors.”

In addition to the witness letters, the petitioner submitted copies of his published research articles, but did not provide evidence of any citations to the articles.

The Denial

The AAO held that the evidence did not demonstrate that the petitioner’s work had a discernable impact beyond the original contributions expected of most postdoctoral researchers. In this case, the wording of the testimonials hurt the researcher’s petition. Instead of focusing on his past achievements, letter writers concentrated on the prospective future benefit of the petitioner’s work. According to the decision, the testimonials:

center on the petitioner’s ongoing research and the expectation of future results. These witnesses discuss what may, might, or could one day result from the petitioner’s work, rather than how his past efforts have already had a discernable impact beyond the original contributions expected of most postdoctoral researchers. While numerous witnesses discuss the potential applications of his current work, there is no indication that the applications have yet to be realized.

The AAO also found that the testimonials, which were written by witnesses with close ties to the petitioner, were not convincing evidence of significant influence on the field:

We note here that the petitioner’s witnesses consist almost entirely of individuals with direct ties to the petitioner. Their letters describe the petitioner’s expertise and value to his ongoing research projects, but they do not demonstrate the petitioner’s influence on the field beyond the institutions where he has worked. While letters from those close to the petitioner certainly have value, the letters do not show, first-hand, that the petitioner’s work is attracting attention on its own merits, as we might expect with research findings that are especially significant. Independent evidence that would have existed whether or not this petition was filed, such as heavy citation of one’s published findings, would be more persuasive than the subjective statements from individuals selected by the petitioner.

As to the petitioner’s list of publications, the AAO referred to a report by the Association of American Universities’ Committee on Postdoctoral Education as evidence that the publication of findings is an expected part of a postdoctoral appointment, and therefore insufficient to demonstrate the influence of the researcher’s work:

The Association of American Universities’ Committee on Postdoctoral Education, on page 5 of its Report and Recommendations, March 31, 1998, set forth its recommended definition of a postdoctoral appointment. Among the factors included in this definition were the acknowledgement that “the appointment is viewed as preparatory for a full-time academic and or research career,” and that “the appointee has the freedom, and is expected, to publish the results of his or her research or scholarship during the period of appointment.” Thus, this national organization considers publication of one’s work to be “expected,” rather than a mark of distinction, among postdoctoral researchers.

Although the AAO found that publication is an expected part of a postdoctoral researcher’s job, it also noted that an impressive citation history would be seen as evidence of a larger impact on the field. However, in this case the petitioner did not provide a citation history for his published works:

When judging the influence and impact that the petitioner’s work has had, the very act of publication is not as reliable a gauge as is the citation history of the published works. Publication alone may serve as evidence of originality, but it is difficult to conclude that a published article is important or influential if there is little evidence that other researchers have relied upon the petitioner’s findings. Frequent citation by independent researchers, on the other hand, would demonstrate more widespread interest in, and reliance on, the petitioner’s work. The petitioner, however, has failed to provide evidence showing that his published work was heavily cited.

Organic Chemistry Research Scientist

Matter of [Name not Provided], File No. [Not Provided] (AAO Jan. 9, 2004) (NIW granted)

The AAO sustained an appeal of a NSC denial of an NIW petition filed by a research scientist in organic chemistry at the University of Wisconsin. The petitioner was researching the use of sunlight to fuel the chemical processes used in the chemical industry to produce synthetic chemical products.

Evidence Submitted

The petitioner submitted several witness letters. The AAO found them persuasive because the letters came from experts at the top of the petitioner’s field, were specific about the petitioner’s place in the field, and stressed the impact of the petitioner’s discoveries. Dr. Milan Hajek, deputy head of the Department of Biotechnology and Environmental Processes, Institute of Chemical Process Fundamentals, Academy of Sciences of the Czech Republic, described the petitioner’s discovery about the stages of photoreactions and explained how the discovery made possible the creation of new industrial processes using solid-state photoreaction technology:

The only disadvantage which until now prevented the solid-state photoreactions from wide practical application is that they were considered to keep high selectivity only up to very small conversion… But now, with the new results of [the petitioner’s] study this problem seems to be much closer to its solution. The basic idea of [the petitioner’s] discovery is that in many cases solid-state photoreactions occur in stages with its own selectivity characteristic for each consequent stage… This discovery definitely allows creating of new industrial processes based on solid-state photochemistry.

Similarly, Professor Dietrich Dopp of Gerhard Mercator of Universitat, Duisberg, Germany, noted that the petitioner “made a number of very important contributions into this field.” Professor Dopp discussed a case in which the petitioner’s work changed a “traditional opinion” that was “widely accepted” in the field:

The remarkable discovery by [the petitioner] . . . dramatically enlarges the area of possible practical applications of photochemistry. His finding of the solid-state photoreaction occurring in stages with sometimes increased selectivity at later stages came against the traditional opinion widely accepted by scientists in the field. . . . [The petitioner] has already demonstrated the usefulness of his discovery by finding some enone reactions which result in obtaining products of the second stage.

Finally, the petitioner received strongly worded letters of support from experts at the very top of the field. The decision stated:

Professor Howard E. Zimmerman, a member of the highly prestigious and exclusive National Academy of Sciences, supervises the petitioner’s work…. Prof. Zimmerman states that the petitioner possesses abilities not found in his colleagues, and that the petitioner “has already made several important contributions to the field.” Prof. Zimmerman acknowledges that, at this point, the petitioner’s contributions are theoretical rather than practical, but “[t]he practical applications for U.S. industry [are] enormous.” Numerous witnesses stress both the cost savings and environmental benefits to be gained by building on the petitioner’s fundamental work.

The Approval

The AAO found that the petitioner adequately demonstrated his impact on the field. In this case, the submitted witness letters, the only evidence discussed in the decision, were specific about the petitioner’s contributions to the field, stressed the importance of these contributions, and came from experts at the top of the petitioner’s field. Based on the witness letters provided, the AAO found that:

the petitioner has earned a significant reputation outside of his immediate circle of mentors and collaborators, and . . . established experts in the field consider his work to be highly significant in establishing a theoretical framework upon which to build.

AIDS Researcher

Matter of [Name not Provided], File No. WAC 03 005 54932 (AAO Jan. 9, 2004) (NIW granted)

The AAO sustained an appeal of a CSC denial of a NIW petition filed by a scientific researcher focusing on HIV and AIDS. The AAO determined that the petitioner, who is considered an expert in AIDS research on the African continent and in Papua New Guinea, qualified for a national interest waiver.

Evidence Submitted

Along with copies of published articles and presentation abstracts, the petitioner submitted many witness letters. The AAO decision noted that the witnesses, many of whom had worked closely with the petitioner, focused primarily on “general overviews of the petitioner’s credentials,” and observed that those witnesses who had fewer ties to the petitioner offered few details to explain the significance of his work:

Prof. Iwamoto says nothing about the petitioner’s work except “I was impressed by his keen interest in microbiology and immunology. Considering the resource poor settings [where] he has spent his career, his accomplishment is outstanding.” Those witnesses who have known the petitioner for many years offer more details. Professor Gabriel C. Ezeilo of the University of Malawi, who has known the petitioner “for over 12 years,” states that the petitioner “is well known beyond Nigeria” owing to his published monographs, clinical trials, “and his report on natural honey as a healing agent for wounds.” Prof Ezelio adds that the petitioner “was the president of the Federation of African Immunological Societies.”

In addition to the relatively weak witness letters, the petitioner submitted documentation of his national recognition. The AAO found that this evidence “[supported] the contention that the petitioner is known in Africa and Papua New Guinea as a highly regarded expert in his field.” The decision stated:

Some documents indicate a degree of recognition elsewhere as well. The petitioner has documented the national distribution of two educational pamphlets, “HIV/AIDS: Issues of concern for employers” and “HIV/AIDS: QUESTIONS & ANSWERS.”

Finally, the petitioner submitted letters from a number of third-party witnesses that attested to the many honors he has received. The AAO did not find this evidence convincing:

The petitioner submits several letters from the American Biographical Institute (ABI), the United Cultural Convention (which has the same street address as ABI), and the International Biographical Centre (which names ABI in some of its communications), indicating that the petitioner has been selected or nominated for numerous honors including the “Noble [sic] Prize.” There is no evidence that prizes or awards from these entities are considered significant except by the honorees themselves. ABI has no connection with the Nobel Prize. These entities appear to exist primarily for the purpose of selling books, plaques, and other materials (often costing hundreds of dollars each) to the purported honorees. We cannot attach significant weight to these materials, although their submission does not diminish the weight of the petitioner’s other evidence.

The Approval

While discounting the impact of the letters provided by witnesses and those entities related to the ABI, the AAO granted the petitioner a national interest waiver, finding that the petitioner adequately demonstrated his impact on the field. The decision stated:

While the record does contain several letters from the petitioner’s close associates, as well as evidence of negligible value such as the numerous letters from ABI and related entities, there remains considerable evidence of the petitioner’s international impact as a researcher and educator. This evidence establishes the petitioner as an international expert with decades of experience, rather than a recent graduate whose work is known only to his mentors and collaborators.

Of particular value was the objective evidence of the petitioner’s national and international renown, such as the documented distribution of his educational AIDS pamphlets in Papua New Guinea. The AAO found that those documents “[supported] the contention that the petitioner is known in Africa and Papua New Guinea as a highly regarded expert in his field.”

In sum, the AAO found that the evidence successfully established that the petitioner’s past record of achievement was at a level that justified a waiver of the job offer requirement:

While the petitioner’s recognition is greater in some geographic areas than in others… the petitioner appears to have elevated himself above many others in his field through his prolific research, leadership roles in national and international organizations, and other activities.

Postdoctoral Research Associate, Aquatic Biology

Matter of [Name not Provided], File No. WAC 03 004 51383 (AAO Jan. 21, 2004) (NIW denied)

The AAO dismissed an appeal of a CSC decision by a postdoctoral research associate in the Department of Biology at Arizona State University (ASU). The research associate, who held a master’s degree in environmental engineering from Bradley University and a Ph.D. in aquatic biology from Saitama University (Japan), used simulation models to mathematically evaluate biological phenomena.

Evidence Submitted

The petitioner submitted several witness letters from professors at institutions such as Arizona State University and Saitama University. Many of the witnesses praised the petitioner’s ongoing research. One professor noted that this research would eventually be published:

[The petitioner’s] contribution in my multi-million dollar National Science Foundation project has been invaluable. With his assistance, hard work and skills we are about to complete several very important research sub-projects and they will soon turn into international publications of high quality of which [the petitioner] will be the first author.

Another professor asserted that the petitioner’s discoveries could save U.S. cities large amounts of money:

The cost of nutrient removal for Austin alone is expected to run into approximately $100 million. Even a 10-20% savings cost, based on [the petitioner’s] research, would greatly benefit a cash-strapped municipality like Austin.

Other witnesses discussed the petitioner’s publications and stated that the petitioner’s work had been cited many times. To support these statements, the petitioner included documentation of his publications, but did not submit documentation of his citation history.

The Denial

The AAO held that the evidence did not demonstrate that the petitioner’s findings had yet influenced the larger field in a measurable way. In this case, the petition suffered because many of the claims put forth in the testimonials, coming mostly from colleagues and alluding mostly to the future benefit of the researcher’s work, were not backed by objective evidence.

According to the decision, one witness’s statements “regarding the potential benefit of the petitioner’s ongoing research and the expectation that he will eventually publish his results cannot suffice to demonstrate eligibility for a national interest waiver.” The decision continued, “such statements fail to persuasively distinguish the petitioner from other competent researchers.” In reference to the testimonial concerning the use of the petitioner’s research in Austin, Texas, the AAO found that the witness:

describes the “potential” benefits of the petitioner’s research for the City of Austin; however, he offers no objective data showing that the petitioner’s findings have already had a discernable impact on Austin’s water treatment strategies.

The AAO also found that because the testimonials came from witnesses who had direct ties to the petitioner or his research projects and not researchers independent of the petitioner, there was not sufficient evidence to demonstrate that “the greater scientific community views his findings as particularly significant.” The decision continued:

That the witnesses appear limited to [the petitioner’s] current and former colleagues is not intended to cast aspersions on their integrity. We acknowledge that two of the petitioner’s witnesses do not appear to be current or former colleagues. Also, while letters from witnesses from public agencies or national organizations are certainly helpful, their absence from the record is not automatically fatal to the petitioner’s national interest waiver claim. Nevertheless, it is apparent that the majority of the witnesses in this case became aware of the petitioner’s work because of their collaborations with the petitioner or his superiors. While letters from the petitioner’s research supervisors and collaborators certainly have value, they do not show, first-hand, that his work is attracting attention on its own merits, as we might expect with research findings that are especially significant.

The AAO found unconvincing the evidence concerning the petitioner’s publication and citation records. Based on the definition of a postdoctoral appointment set forth by the Association of American Universities’ Committee on Postdoctoral Education, the AAO found the “publication of one’s work to be ‘expected,’ rather than a mark of distinction, among postdoctoral researchers.”

Finally, the AAO rejected unsubstantiated claims that the petitioner’s work had been widely cited:

Witness statements to the effect that the petitioner’s work has had “a substantial impact in the field of ecological chemistry” cannot suffice to establish such influence, when the petitioner provides no evidence from citation indices to support these claims. Independent evidence that would have existed whether or not this petition had been filed would be more persuasive than subjective statements from individuals selected by the petitioner.

Research Programmer, Biometrics

Matter of [Name not Provided], File No. [Not Provided] (AAO Jan. 21, 2004) (NIW denied)

The AAO dismissed an appeal of a NSC denial of an NIW petition filed by a research programmer in the Department of Natural Resources and Environmental Sciences at University of Illinois at Urbana-Champaign (UIUC). The researcher, who received his Ph.D. in biometrics at UIUC, developed a new ecological model estimation method.

Evidence Submitted

The petitioner submitted several witness letters from professors at institutions including the University of Illinois at Urbana-Champaign and the State University of New York, and experts in the field, including a project manager and research biologist for the U.S. Army Corp of Engineers’ Research and Development Center in Champaign, Illinois. Each witness praised the ecological model estimation method that the petitioner developed. One professor wrote:

As witnessed by a strong record of publications in leading, international, peer-reviewed professional journals, [the petitioner’s] research represents a substantial contribution to ecological modeling and, in turn, a significant input to the development of sustainable practices for ecosystem management.

In another witness letter, a UIUC professor noted the novelty of the petitioner’s paper:

The work was a major step forward in parameterization of complex models. This is the first time that calibration of complicated models of complex ecosystems has been based on realistic, objective, and systematic information.

The petitioner supplied evidence that he had published four articles in internationally circulated journals and presented six articles at international and national conferences based on his research. The petitioner also submitted evidence that one of his papers had been cited three times.

The Denial

The AAO found that the evidence did not demonstrate that the petitioner’s work had substantial impact on the overall field. Despite the testimonials submitted by professors and experts in the field and the petitioner’s record of publications, the small number of citations to the researcher’s work remained a major issue:

We find the total number of citations presented here (three) insufficient to demonstrate that the petitioner’s work has had substantial impact on the overall field. The witness letters show that the petitioner’s work has provided new and useful information to the overall body of knowledge in the field, but this is the goal of all such research. In this case, the statements from witnesses selected by the petitioner, while useful in describing his expertise and the overall importance of his research, fail to demonstrate that his individual research accomplishments are so unusual that he merits the benefit of a national interest waiver.

Further, due to the small number of citations to the petitioner’s work, the AAO found the novelty of the petitioner’s research unconvincing as a measure of his past record of achievement:

The fact that the petitioner was among the first to develop a new model estimation method carries little weight. Of far greater importance in this proceeding is the importance to the overall field of the petitioner’s methodology. The petitioner has presented a citation index showing that the paper entitled “A Bayesian approach for estimating the parameters of a forest process model based on long term growth data” was cited a total of three times. Such a limited number of citations suggests that this work has gone largely unnoticed by the greater field.

Research Associate, Etymology

Matter of [Name not Provided], File No. WAC 03 042 54861 (AAO Feb 24, 2004) (NIW granted)

The AAO sustained an appeal of a CSC denial of an NIW petition filed by a research associate at the University of Guam. The petitioner was studying the management of invasive weeds and the use of pheromones to trap the New Guinea sugarcane weevil.

Evidence Submitted

The petitioner submitted 15 witness letters, many from current and past collaborators. The AAO found the letters submitted by those who had worked with the petitioner useful in this case, noting that they demonstrated the petitioner’s role in the field and the importance of his work. The decision stated:

While such letters cannot by themselves establish the petitioner’s influence on the field beyond his collaborators, they are useful and even necessary evidence as they explain the details of his work and the roles that he played in his projects. The record contains a total of 15 reference letters, nearly all from different institutions. The large number of letters from collaborators is due to the fact that the petitioner has worked in Guam, Vienna, Finland, Spain, Germany, Ethiopia, Great Britain, and India. Regardless, we do not find it useful to compare the number of letters from collaborators with the number of independent letters. Rather, what is significant is who the independent experts are, how they learned of the petitioner’s work, and what they say. . . . While some of these letters simply discuss the importance of the petitioner’s area of research and his qualification to work in the field, other letters are more significant.

The AAO specifically noted a letter from a professor at Cornell University who was a member of the National Academy of Sciences. According to the AAO, this professor asserted that:

the petitioner “has made a breakthrough observation that employing synthetic pheromones and plant-based chemicals can result in the efficient mass trapping without pesticides.” [The professor] explains that this technique that can be used with numerous pests. [The professor] specifically adds that the petitioner “has made significant advances where others have failed.”

The record also included a letter from an entomology professor who was the director of the Coastal Research and Education Center at Clemson University and Team Leader of their Integrated Pest Management (IPM) project in Indonesia. Like the Cornell professor, the Clemson professor explained the specific potential uses of the petitioner’s work. However, the Clemson professor also listed the places in which the petitioner’s work had already been used to help farmers:

Thus far IPM programs on cruciferous crops developed by [the petitioner] have greatly helped the farmers from . . . South Carolina, California, New York, Michigan and Florida. Similarly, [an] IPM program on cotton has helped the farming community in controlling the bolls worms in Mississippi, Florida, California, Arizona and Tennessee. [The petitioner] has developed an IPM program recently on eggplant [that] will be very valuable in the coming days to the regions where the eggplant and other vegetables are grown in the U.S.

Also submitted to the record were several articles that had been published before the filing, along with evidence that government agencies and the agriculture industry had been influenced by the articles. The AAO found this evidence of the petitioner’s impact persuasive:

The petitioner submitted evidence that these articles were not merely published, but recognized in the field. Such evidence included, but was not limited to, reprint requests from government agencies and those in the agriculture industry. This objective evidence supports the assertions made by the petitioner’s references.

The Approval

The AAO granted the petitioner a national interest waiver, finding that the evidence submitted successfully demonstrated the influence of the petitioner’s work beyond his immediate projects. In reference to the Clemson professor’s testimonial, the AAO found:

These comments suggest that the proposed future benefits of the petitioner’s work are not merely hypothetical. Rather, the petitioner has already impacted the agricultural industry.

In this case, the strongly worded testimony of renowned experts and the objective evidence that others in the industry had implemented the petitioner’s methods was sufficient to demonstrate his impact in etymology.

Ph.D. Candidate, Cancer Pharmacology

Matter of [Name not Provided], File No. EAC 99 120 50002 (AAO Feb. 26, 2004) (NIW granted)

The AAO sustained an appeal of a Vermont Service Center (VSC) denial of an NIW petition filed by a Ph.D. student studying pharmacology at Rutgers University and the University of Medicine and Dentistry of New Jersey. The petitioner studied DNA damage and repair in relation to cancer biology and cancer pharmacology:

Evidence Submitted

The petitioner submitted many witness letters from colleagues and experts in the field. One witness, a professor at the University of Medicine and Dentistry of New Jersey (UMDNJ) and Chairman of the Department of Pharmacology at UMDNJ, wrote:

[The petitioner] is the first person to demonstrate that DNA topoisomerase II is one of the enzymes involved in the breakdown of the chromosomes into the high molecular weight DNA fragments… This finding has great implications in developing new drugs and new treatment strategies for cancer patients

In another letter, the chief of the laboratory of molecular pharmacology at the National Cancer Institute described the petitioner’s discoveries. He stated that the petitioner’s “work in cancer research is extraordinary,” and his “research has clearly had a major impact on cancer research in the United States.” However, the AAO noted that the lab chief “did not elaborate or provide concrete examples of how the petitioner’s work has changed the direction of cancer research in the United States.”

Dr. Beppino Giovanella, laboratory director at the Stehlin Foundation for Cancer Research, Houston, Texas, who “only met [the petitioner] a couple of times at scientific meetings,” wrote more specifically about the impact of the petitioner’s work:

[The petitioner’s] recent publication on the role of DNA topoisomerase II in oxidative stress and cell death is of enormous importance in cancer and other medical research areas… This is the first demonstration of an important enzyme being involved in both cell proliferation and cell death. The implications of this finding are enormous… Certainly, [the petitioner’s] continued research in this new area is of critical importance to fully unveil the significance of this new finding

A professor of Duke University Medical Center concurred that the petitioner’s “work is highly significant,” indicating “new directions for research.”

The Approval

The AAO found that the witness letters provided by recognized experts were specific enough about the petitioner’s research contributions to demonstrate measurable influence to the larger field:

Upon consideration of the evidence and letters presented, we are persuaded that the petitioner’s work has made a significant impression not only on his mentors and collaborators, but also on independent researchers throughout the country. The reaction of these independent researchers goes beyond mere praise, indicating recognition of the petitioner’s work as having substantial significance.

Research Scientist, Organic Synthesis

Matter of [Name not Provided], File No. LIN 02 236 50605 (AAO Feb 26, 2004) (NIW granted)

The AAO sustained an appeal of a NSC denial of an NIW petition filed by a research scientist in organic chemistry. The petitioner studied glycorandomization and was responsible for the first total synthesis of martinellic acid.

Evidence Submitted

The petitioner submitted a number of witness letters, three of which were from members of the National Academy of Sciences. The letters submitted were highly favorable and were specific about the petitioner’s contributions to the field. One letter from the director of the laboratory for bioorganic chemistry at the Sloan Kettering Cancer Center stated that the petitioner:

was instrumental in applying the nucleotide-sugar library to produce nonnatural “natural” products via combinatorial biology and glycorandomization technology.

Another witness, the director of the Genomics Institute of the Novartis Research Foundation, asserted that the petitioner’s research:

is considered to have provided significant and influential advances in the fields of organic synthesis and medicinal chemistry.

The petitioner also submitted a letter that the AAO described as “independent” and “objective” evidence:

[Name not provided], a professor at the Scripps Research Institute and member of the National Academy of Sciences, asserts that he was aware of the petitioner’s papers from his own review of literature in the petitioner’s field. [The professor] notes that the technique of glycorandomization was developed in Dr. Thorson’s laboratory and asserts that the petitioner “improved these methods so that they could facilitate the synthesis of these natural products.” [The professor] concluded: “The technique he developed was a brilliant extension of the glycorandomization method.”

The petitioner also provided documentation that he helped make the first total synthesis of martinellic acid. This work was published in Organic Letters and was cited a number of times by independent researchers in the field. The AAO found that the petitioner’s citation record indicated his impact on the field:

[T]he record contains evidence that the petitioner has been listed as the first author of other articles that show a consistent pattern of recognition in the research community through moderate citation.

Finally, the petitioner provided documentation that two publications in the field ran articles about the petitioner’s work. The AAO found the articles convincing evidence of the petitioner’s impact, even though the petitioner was not personally mentioned in either story:

Chemical and Engineering News, an online news publication affiliated with the American Chemical Society, featured the work of [Name not provided], published in Nature and Structural Biology as “News of the Week.” The same online publication featured the story again under “Chemistry Highlights 2001.” The [NSC] expressed concern that the petitioner was not mentioned in either story and was not first-author on the article published in Nature Structural Biology. Considering the classification sought and the record as a whole, we do not find this concern warranted in this case. First, the petitioner need not demonstrate acclaim. Thus, the mere fact that Chemical and Engineering News does not use the petitioner’s name is not disqualifying. Second, while the petitioner is not the first author listed on the Nature and Structural Biology article, both [witnesses] attest to the importance of the petitioner’s work on the project.

The Approval

The AAO found that the combination of favorable letters from members of the National Academy of Sciences, articles written about the petitioner’s work, and a strong publication and citation record were convincing evidence of his impact in the field:

The record is supported by letters from three members of the National Academy of Sciences, one of whom does not know the petitioner personally. While we must still evaluate the content of such letters and not simply the caliber of the authors, all of the letters are highly favorable and identify specific contributions made by the petitioner. The petitioner’s work, while a collaborative effort, has been singled out by an online chemistry news publication and the petitioner’s publication history demonstrates a pattern of influence as his articles are consistently cited.

Trends in Recent NIW decisions

A List of Publications Alone Isn’t Enough

As the appeals reviewed for this article demonstrate, the mere publication of a researcher’s findings is not sufficient to establish a substantial impact in the field. In fact, every unsuccessful appeal reviewed here included a list of research publications. One appeal included evidence that the petitioner had published six papers in international journals, over ten papers in international conferences, and had submitted three papers being prepared for publication. However, the AAO held that to persuasively distinguish the petitioner from other competent researchers, the petitioner must provide evidence that the presentation or publication of one’s work is a rarity in the field or evidence that the petitioner’s findings have influenced the larger field in a measurable way.

The NIW appeals made by the postdoctoral cancer biology research associate and the postdoctoral aquatic biology research associate, which were both dismissed, reveal the high standards to which the AAO holds postdoctoral researchers. In both cases the AAO held that publication is an expected part of a postdoctoral appointment and therefore insufficient to demonstrate the influence of the researcher’s work.

The Importance of Citations

The AAO found that an impressive citation history could be used as evidence of impact on the field:

When judging the influence and impact that the petitioner’s work has had, the very act of publication is not as reliable a gauge as is the citation history of the published works. Publication alone may serve as evidence of originality, but it is difficult to conclude that a published article is important or influential if there is little evidence that other researchers have relied upon the petitioner’s findings. Frequent citation by independent researchers, on the other hand, would demonstrate more widespread interest in, and reliance on, the petitioner’s work.

In every unsuccessful appeal reviewed for this article, the AAO noted the insufficient number of citations to the petitioner’s work. The AAO, however, did not indicate how many citations would be adequate to demonstrate a measurable impact in the field. In the successful appeal by the organic chemistry research scientist, the exact number of citations to the petitioner’s work was not given. However, the AAO found that the petitioner had demonstrated the petitioner’s influence:

[T]he record contains evidence that the petitioner has been listed as the first author of other articles that show a consistent pattern of recognition in the research community through moderate citation.

Although the AAO found that “moderate citation” was sufficient in demonstrating the influence of the organic chemistry research scientist’s work, the AAO found that eight citations were insufficient to demonstrate measurable influence in the unsuccessful appeal by the Ph.D. candidate and research assistant in agricultural engineering. The following quote reveals the importance the AAO the places on citations:

Numerous independent citations would provide firm evidence that other researchers have been influenced by the petitioner’s work. Their citation of the petitioner’s work demonstrates their familiarity with it. If, on the other hand, there are few or no citations of an alien’s work, suggesting that that work has gone largely unnoticed by the larger research community, then it is reasonable to question how widely that alien’s work is viewed as being noteworthy. It is also reasonable to question how much impact--and national benefit--a researcher’s work would have if that research does not influence the direction of future research

Novel Research Isn’t Necessarily Influential Research

Like publication records without citations, documentation of novel research discoveries and patents without evidence of their impact on others was generally ineffective. For example, the unsuccessful appeal by the research programmer in biometrics was hurt by the lack of evidence that the new ecological model estimation method he had developed had impacted the field. This, despite the fact that each expert witness praised the petitioner’s new method.

Similarly, the AAO found, in the appeal by the Ph.D. candidate in agricultural engineering, that patent applications were not compelling evidence of substantial past achievement because there was no indication that the patents had influenced the field. Instead, the AAO noted that the filing of, and even approval of, patent applications is anything but rare in the United States.

The Power of Objective Valuation

In the cases reviewed, the most effective way to demonstrate measurable influence was to present an objective valuation of the researcher’s work in the field. Citations are one form of objective valuation. As noted above, they were particularly influential in the reviewed decisions. However, all primary source evidence that the larger field had adopted the researcher’s findings helped to demonstrating measurable influence.

The AIDS researcher’s successful appeal highlights the importance of objective valuation. The petitioner in this case submitted witness letters, an award record, and evidence that two pamphlets he authored were distributed nationally in Papua New Guinea. Although the importance of the witness letters and award record were discounted in the decision, the AAO found that evidence of the national distribution of the petitioner’s pamphlets “[supported] the contention that the petitioner is known in Africa and Papua New Guinea as a highly regarded expert in his field.”

Like the AIDS researcher, the research associate in etymology demonstrated the influence of his work by providing evidence that others in the field had adopted his findings. Specifically, the petitioner submitted evidence that his published articles had influenced both government agencies and the agriculture industry. The petitioner also included a witness letter that listed the places in which his work had already been used to help farmers. The AAO found this objective evidence of the petitioner’s impact persuasive:

The petitioner submitted evidence that these articles were not merely published, but recognized in the field. Such evidence included, but was not limited to, reprint requests from government agencies and those in the agriculture industry. This objective evidence supports the assertions made by the petitioner’s references.

Witness Letters: The Right Kind Can Do a World of Good

In the cases reviewed, the right kind of witness letter went a long way in swaying the AAO in the petitioner’s favor. The research associate in etymology submitted an effective witness letter for his petition. The letter was from a recognized expert in the field who had few ties to the petitioner; was specific about the petitioner’s past accomplishments; and discussed the potential future benefits of the petitioner’s work not at the expense of his past accomplishments, but as a continuation of them.

The successful appeal by the Ph.D. candidate in cancer pharmacology also highlights the importance of good witness letters. In fact, no other submitted evidence was discussed in the decision. In granting the petitioner an NIW, the AAO found:

we are persuaded that the petitioner’s work has made a significant impression not only on his mentors and collaborators, but also on independent researchers throughout the country. The reaction of these independent researchers goes beyond mere praise, indicating recognition of the petitioner’s work as having substantial significance.

Successful witness letters are strongly worded, specific, and come from recognized experts in the field. As the reviewed cases demonstrate, they can be extremely influential. Of the five successful appeals reviewed, three were carried almost exclusively by the strength of the witness letters submitted.

Extraordinary Ability Arguments are Occasionally Convincing

In its discussion of evidence presented to demonstrate measurable influence, the AAO focused primarily on the issues already outlined. However, it did consider other forms of evidence, such as awards and publications about the petitioner. Generally, the AAO found evidence that would normally be associated with an extraordinary ability visa petition to be a moderately convincing part, but not a necessary part, of a national interest waiver petition.

The successful appeal of the research scientist in organic synthesis hinged on the strongly worded specific letters from three members of the National Academy of Sciences. But it also included a publication and citation history and evidence that the petitioner’s work was noted in two publications within the field. The service center worried that the publications did not list the petitioner by name, and that the petitioner was not the first author on the accompanying article. However, in sustaining the appeal, the AAO found this concern unwarranted, given that this was a NIW case and not a case where the extraordinary ability standard need be applied:

Considering the classification sought and the record as a whole we do not find this concern warranted in this particular case. First, the petitioner need not demonstrate acclaim [in an NIW case]. Thus, the mere fact that Chemical and Engineering News does not use the petitioner’s name is not disqualifying. Second, while the petitioner is not the first author listed on the Nature Structural Biology article, both [witnesses] attest to the importance of the petitioner’s work on the project.

However, the AAO was clear in the reviewed NIW cases that the demonstration of exceptional ability in and of itself is not sufficient to meet the qualifications for a national interest waiver. In the unsuccessful appeal by the research programmer in biometrics, a witness noted the petitioner’s abilities as an exceptional researcher. The AAO responded:

[E]xceptional ability in one’s field of endeavor does not, by itself, compel CIS to grant a national interest waiver of the job offer requirement.

Conclusion

Since NYSDOT, petitioners have found it much more difficult to obtain a waiver of the labor certification requirement because their research is in the national interest. NIWs for qualified researchers are still possible. But to qualify for a NIW, evidence of a measurable impact on the larger field must be well documented. The key to a successful national interest waiver petition for a researcher is providing evidence of the importance of the petitioner’s research within the field, the significance of the petitioner’s past accomplishments, and the ways in which the petitioner’s findings have changed the approach of others.

Well-crafted advocacy can support a deserving national interest waiver petition. First, include objective valuations of the worth of the researcher’s publications and research discoveries whenever possible. Citations to the work by other researchers and reprint requests from third parties are effective forms of objective valuation. Similarly, evidence that government agencies or those in the industry have implemented the petitioner’s discoveries can be quite influential in demonstrating measurable impact.

Second, submit strongly worded, specific witness letters from recognized experts in the field. This should include witnesses who know the petitioner primarily through published research and witnesses who have worked directly with the petitioner. Although the AAO generally finds letters from witnesses with fewer ties to the petitioner more convincing, letters from collaborators are often quite effective in revealing the impact of the petitioner’s research because of their specificity.

Third, don’t confuse national interest waiver petitions with extraordinary ability petitions. Evidence that may not meet the extraordinary ability standard can still be influential in demonstrating the measurable impact of a petitioner’s research.

Finally, more is not necessarily better. Busy CIS adjudicators can be overwhelmed and annoyed by unnecessary bulk. A good cover letter with a brief summary showing exactly how the beneficiary meets the regulatory requirements is important. Equally important is a clear document or exhibit index. Advocate with your document index. Setting out an easy-to-follow roadmap for the adjudicator is crucial.

FootNotes:

[1] A slightly different version of this article will be published in the upcoming AILA publication, Immigration Options for Academics and Researchers (AILA 2005). Copyright © 2004 Sean Koehler and Stephen Yale-Loehr . All rights reserved.

[1] Sean Koehler (sck24@cornell.edu) graduated from Cornell University in 2003. Stephen Yale-Loehr (syl@millermayer.com) is co-author of Immigration Law and Procedure, the leading immigration law treatise, published by LexisNexis Matthew Bender. He also teaches immigration and asylum law at Cornell Law School, and practices immigration law at Miller Mayer in Ithaca, New York. He chairs the American Immigration Lawyers Association’s Business Immigration Committee.

[1] 22 I. & N. Dec. 215 (Acting Assoc. Comm’r 1998).

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