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发帖数: 27 | 1 NIW被拒案例的分析及解说
By Craig Corsini at Lailawus
1. Insufficiency of Expert Testimonials: In a well-publicized case, the
AAO found fault with the NIW applicant’s expert testimonials (i.e., the
letters of recommendation).
• First, AAO negated the significance of the letters because it
found that the letter writers (i.e., the “referees” in USCIS parlance)
were geographically limited and, consequently, incapable of objectively
assess | l****w
发帖数: 27 | 2 NIW被拒案例的分析及解说
By Craig Corsini at Lailawus
1. Insufficiency of Expert Testimonials: In a well-publicized case, the
AAO found fault with the NIW applicant’s expert testimonials (i.e., the
letters of recommendation).
• First, AAO negated the significance of the letters because it
found that the letter writers (i.e., the “referees” in USCIS parlance)
were geographically limited and, consequently, incapable of objectively
assessing national or international acclaim of the NIW applicant or his work
.
• In addition, many of the expert testimonials focused on the
quality of the academic institutions the NIW applicant attended as evidence
of his expertise, instead of focusing on his personal achievements. The AAO
did not believe that graduation from a prominent academic institution would,
by itself, be sufficient evidence of “exceptional ability.”
• Likewise, the AAO did not believe that the applicant’s record of
publication in scholarly journals and presentations at conferences spoke to
the quality of the NIW applicant’s work because, it held, such journals
and conferences were common and, therefore, the NIW applicant failed to
prove that his own work was “inherently demonstrative of ‘international
recognition.’”
• Lastly, the AAO believed that the applicant’s failure to find
employment over the preceding three years in the U.S. evidence of his lack
of expertise. On that fact alone, the AAO argued that the applicant was
seeking a national interest waiver (as opposed to an employment-based
immigration petition) because he could not find an employer to sponsor him.
2. Insufficiency of Expert Testimonials: In another NIW denial case, the
AAO found fault with the NIW applicant’s expert testimonials (i.e., the
letters of recommendation).
• First, AAO stated its belief that “competency, skill, even
exceptional ability are not fundamental grounds for a national interest
waiver, regardless of the nature of the alien’s occupation.” However, the
AAO’s primary arguments against the applicant were based on his credentials
or, in the view of the AAO, his lack thereof. Specifically, the AAO noted
that all the referees were acquaintances of the applicant and, therefore,
incapable of assessing the prominence of the applicant’s work.
• In addition, the AAO found fault with the referees’ credentials
because, as the AAO stated, the record failed to satisfactorily demonstrate
that the referees were, “particularly renowned in their field.”
• Further, because only one of the referees remarked that the
applicant was an internationally recognized expert in the field, the AAO
considered that assessment to be an opinion as opposed to an, “assertion of
demonstrable fact” because none of the other referees made this assertion.
• Lastly, the AAO determined that the record failed to show the
applicant’s accomplishments in comparison to, “other civil engineers with
similar training and experience.”
3. Failure of NIW Application to Demonstrate Why it Would be in the
National Interest to Waiver the Labor Certification Process: The case
involved an NIW applicant who was a financial analyst at a major financial
services company.
• In denying the applicant’s appeal, the AAO noted that in one of
the expert testimonials, the president of a competing financial service
company noted his intention to hire the applicant upon approval of the NIW.
The AAO found fault with this statement because the other expert
testimonials noted the importance of the applicant as an employee of his
current company.
• Further, the applicant made no mention of this job offer and
doubt was raised as to whether the applicant would stay with his current
company. If he left his current company, the AAO believed, his value to the
national economy, as described in many of the expert testimonials, would be
reduced. This was particularly evident by the applicant’s statement that an
unfavorable immigration ruling would jeopardize the success of his company
’s financial operations in Western Europe. The AAO wanted to know why, if
the applicant’s work for his company was so important, he did not simply
seek labor certification.
• The AAO also emphasized that the NIW applicant must not merely
prove his benefit to the nation, but also demonstrate why it is in the
national interest to waive the labor certification requirement. The AAO
denial stated that, “a showing must be made that the standard processes are
inappropriate and that the national interest would suffer if these
processes were enforced.” In addition, the applicant must demonstrate that
he possesses more than a, “level of training or education which could be
articulated on an application for a labor certification.”
4. Inability to Demonstrate National Significance of Applicant’s Work:
This denial involved an NIW applicant who was a foreign language translator.
• In denying the applicant’s appeal, the AAO noted that the
applicant failed to demonstrate his work was nationally influential or
appreciably superior to the work of others in his field.
• Further, the AAO noted that the record failed to demonstrate that
the applicant’s publications were considered exceptionally influential
outside his place of employment; a public university in the eastern United
States. Although the applicant argued that national influence was
demonstrated by the fact that his textbooks were used in various
universities and that his CD-ROM was used by the NASA (i.e., the National
Aeronautics and Space Administration) on the MIR space station, the AAO
countered that “the plain fact that the petitioner created materials used
by NASA does not establish that the petitioner’s materials outperform those
of others experts in the field.”
• Additionally, the AAO noted that the applicant’s textbooks were
not being used at especially prominent universities and were not used at
universities/colleges to an extent more than any other such textbook. In
addition, the AAO further pointed to the fact that the applicant’s referees
were all acquaintances of the applicant (i.e., there were no independent
advisory opinions included in the record), which contradicted the argument
by the applicant that his work was nationally prominent.
• Lastly, the AAO considered the applicant’s low salary as
evidence further contradicting his claim that his work was nationally
prominent. Specifically, if the applicant’s work was truly nationally
prominent, he should have been able to command a high salary.
5. Accumulation of Patents Alone Is Insufficient to Prove Exceptional
Ability: In a well-publicized case involving the appeal of an NIW denial by
the USCIS California Service Center, the Administrative Appeals Office (the
“AAO;” i.e., the government office that hears appeals of NIW denials)
rejected the accumulation of patents by the NIW applicant as evidence of
exceptional ability because, as the AAO stated, patents are common among
research engineers. Further complicating the applicant’s case, however, was
the fact that his employer refused, as a matter of company policy, to
disclose details of its new inventions, thereby making it impossible for the
AAO to determine whether or not the applicant fundamentally contributed to
any of the company’s new inventions. Likewise, the AAO was unable to
determine if the applicant’s patents served the national interest or merely
served his employer.
For further information regarding national interest waivers, contact i*********[email protected]. |
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