Matter of [name not provided]

File No.: WAC 98-034-53365, California Service Center (AAO, March 29, 1999)

Non-Precedent Decision

AAO Designation: S

Main Holding: National interest waiver denied

Index of Issues: National interest waiver

Cross-reference: Immigration Law and Procedure § 39.04[4]

Represented by Carmen Diamore-Siah (Honolulu, HI)

Summary of Decision:

Petitioner was a self-represented researcher/scientist/computer engineer. The AAO did not find him a unique commodity, in part due to his lack of experience. He was employed for a total of ten months in his field at the time of the filing date. Also, the AAO did not accept the accumulation of patents as evidence of exceptional ability, as patents are common among research engineers. The AAO also rejected the argument, following a request for more information, that the petitioner's unusually prolific accumulation of patents made him unique. The petitioner produced enough patents to put him in the top 1% of engineers at Sony. However, because of Sony's policy not to disclose details of new inventions, the AAO was unable to determine that he had made "fundamental contributions which otherwise would have been made substantially later, if at all." Nor could the AAO determine if the petitioner's patents served the national interest, rather than the interest of his employer.


Matter of [name not provided]

File No.: EAC 98-074-54123, Vermont Service Center (AAO, April 6, 1999)

Non-Precedent Decision

AAO Designation: S

Main Holding: National interest waiver denied

Index of Issues: National interest waiver

Cross-reference: Immigration Law and Procedure § 39.04[4]

Represented by Ira L. Mazer (Philadelphia, PA)

Summary of Decision:

The petitioner was a Polish civil engineer who worked on creating a lightweight building concrete that would not release toxic substances. Whether the product has been successfully developed or is in the process of development is unclear, an issue the AAO brought up in its decision. The AAO stated that the petitioner's goal to create such a product, if not realized, cannot be considered beneficial to the national interest.

The AAO took issue with two aspects of the petitioner's letters of reference. First, the referees were geographically limited and therefore unable to objectively assess national or international acclaim. Second, many letters pointed to the quality of the schools the petitioner attended as evidence of his expertise, rather than focusing on his personal achievements. The AAO did not consider graduation from a prestigious university alone to be sufficient evidence of "exceptional ability." Similarly, publication in scholarly journals and presenting at conferences did not speak to the quality of the individual petitioner's work. The AAO stated that, because such journals and conferences are so common, the petitioner must prove that his own work is "inherently demonstrative of 'international recognition.'"

Finally, the AAO considered the alien's inability to find employment in his more than three years in the United States, on an expired visa, evidence of his lack of expertise. The AAO used this fact to argue that the petitioner was seeking a national interest waiver solely because he could not find an employer to petition on his behalf.


Matter of [name not provided]

File No.: EAC 98-089-50151, Vermont Service Center (AAO, March 29, 1999)

Non-Precedent Decision

AAO Designation: S

Main Holding: National interest waiver denied

Index of Issues: National interest waiver

Cross-reference: Immigration Law and Procedure § 39.04[4]

Represented by James Chin (Cleveland, OH)

Summary of Decision:

The Petitioner was a civil engineer who had developed new methods of analyzing and predicting soil erosion. The AAO stressed that it denied the national interest waiver because a labor certification process would not damage the national interest. The decision stated that "competency, skill, even exceptional ability are not fundamental grounds for a national interest waiver, regardless of the nature of the alien's occupation." Despite this argument, the decision did not focus on whether it was in the national interest to waive the labor certification. Instead, the AAO continually challenged the alien's achievements.

The decision pointed out that the referees were all acquaintances of the petitioner, and so were unable to assess the renown of the alien's work. Further, the AAO took issue with the referees' credentials. In the opinion of the AAO, the record failed to show that "the initial witnesses are particularly renowned in their field." And because only one referee noted that the petitioner was among the world's experts, that "must be considered to represent an opinion rather than an assertion of demonstrable fact." Finally, the AAO decided that the record did not show the alien's accomplishments in comparison to "other civil engineers with similar training and experience."


Matter of [name not provided]

File No.: EAC 98-110-51632, Vermont Service Center (AAO, April 6, 1999)

Non-Precedent Decision

AAO Designation: S

Main Holding: National interest waiver denied

Index of Issues: National interest waiver

Cross-reference: Immigration Law and Procedure § 39.04[4]

Represented by Sigang Li (Voorhees, NJ)

Summary of Decision:

The beneficiary was a financial analyst who worked for Bloomberg Financial Markets. In a letter of reference, the president of another company indicated his intention to hire the beneficiary upon visa approval. The AAO found this problematic in that many letters of reference pointed to the importance of the beneficiary as an employee of Bloomberg. The beneficiary made no mention of the other job offer, and the AAO questioned whether he intended to stay at Bloomberg. If he did not, his value to the national economy would be diminished.

The petitioner stated that "an unfavorable immigration ruling would jeopardize the success of Bloomberg's financial operations in Western Europe." The AAO questioned why the petitioner did not simply pursue labor certification. It stressed that the petitioner must not simply prove the beneficiary's benefit to the nation, but also show why it is in the national interest to waive the labor certification requirement. The decision 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." Moreover, the petitioner must show that the beneficiary possesses more than a "level of training or education which could be articulated on an application for a labor certification."


Matter of [name not provided]

File No.: WAC 98-131-50087, California Service Center (AAO, April 6, 1999)

Non-Precedent Decision

AAO Designation: S

Main Holding: National interest waiver granted

Index of Issues: National interest waiver

Cross-reference: Immigration Law and Procedure § 39.04[4]

Represented by Scott Warmuth (Alhambra, CA)

Summary of Decision

Petitioner was a doctoral student and research assistant at the time of filing, and sought employment as a radiology researcher at the University of California, Irvine (UCI). The Director of the CSC denied the petition, holding that the petitioner failed to show that "his work has set him apart from other researchers." The submission of new letters from the same referees, but with grander assessments of the petitioner's ability, resolved that problem. The initial denial also appears to have been based on the lack of geographic diversity among the referees. All referees worked for UCI, except one who worked for UC-San Diego. The AAO reversed the CSC, holding that "the fact that [the petitioner's] findings were repeatedly and consistently cited over a period of several years, in a variety of publications," demonstrated his wide renown. While the AAO did grant the national interest waiver, it never stated precisely why, in this case, the labor certification process would have damaged the national interest. It is unclear, therefore, why this petitioner differed from others who were refused based on that criterion.


Matter of [name not provided]

File No.: EAC 98-142-52621, Vermont Service Center (AAO, March 19, 1999)

Non-Precedent Decision

AAO Designation: S

Main Holding: National interest waiver denied

Index of Issues: National interest waiver

Cross-reference: Immigration Law and Procedure § 39.04[4]

Represented by Syed I. Hyder (Richmond, VA)

Summary of Decision

Petitioner was a Russian language instructor. The AAO denied the NIW based on his failure to show that his work was nationally influential or significantly greater than those in his field. The decision stated that the record did not establish that "the petitioner's published writings are to be considered to be especially influential outside of James Madison University," the petitioner's place of employment. The petitioner argued that national influence was established because his textbooks were used in several universities and colleges, and his CD-ROM was used on the space station Mir to help the U.S. astronauts learn Russian. The AAO argued that "the plain fact that the petitioner created materials used by NASA does not establish that the petitioner's materials outperform those of other experts in the field." Further, the AAO argued that the petitioner's textbooks were not used at more colleges than any other textbook. Nor were they used by particularly prominent colleges. As in many cases, the referees were limited to acquaintances of the petitioner, a fact the AAO used to rebut his assertion of national prominence. Finally, while the petitioner argued that his low salary was a result of his alien status and produced a letter from an academic to that effect, the AAO was unconvinced.