Openers

* Mr. Yale-Loehr (syl@twmlaw.com) is of counsel at True, Walsh & Miller (http://www.twmlaw.com) in Ithaca, New York, and teaches immigration law at Cornell Law School.

Matter of [name not provided] File No.: EAC 98-070-50006, Vermont Service Center (AAO, June 21, 1999)

Xx Immigr. Rep. Xx 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 Jimmy Shaw (Potomac, MD)

Summary of Decision:

The petitioner was a researcher at Johns Hopkins University.  His research involved suppressing the growth of cancer cells.  The petitioner submitted letters from researchers at both Johns Hopkins University and the National Institutes of Health in nearby Bethesda, Maryland.  The Vermont Service Center (VSC) denied the petition, finding that the referees were geographically limited.  Further, he noted that too many of the referees pointed to the impact that the petitioner’s research would have in the future, rather than an impact that had already been realized.  On appeal, the petitioner submitted new letters, also from researchers at Johns Hopkins University, noting that the petitioner’s work “will have fundamental biological significance in aiding development of understanding of the molecular mechanisms of the disease and health in the United States.”  The petitioner also pointed to his work’s publication in Cell, one of the world’s leading biology journals.

The AAO reversed the VSC’s denial, finding that although the “concentration of witnesses could be construed as an indication that the petitioner’s work is little known outside the institution where he works,” other evidence proves this untrue.  For example, the petitioner’s work was cited across the country and overseas, and the international reputation of the researchers at Johns Hopkins University offsets the limited geographic range of the referees.  The VSC director also noted that citation is commonplace among scientific researchers.  However, the AAO noted the remarkable number of citations the petitioner’s work received in a limited period of time. 

Matter of [name not provided] File No.: EAC 98-070-50114, Vermont Service Center (AAO, June 21, 1999) Xx Immigr. Rep. Xx

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 Jun Wang (New York, NY)

Summary of Decision:

The petitioner, a professor and acting chairman of the Department of Biological Sciences at the University of Pittsburgh, Pennsylvania, sought to employ one of his research assistants.  The beneficiary performed research in the causes of cancers of epithelial origins (e.g. prostate and breast cancer.)  The Vermont Service Center (VSC) denied the petition, finding that there was insufficient evidence demonstrating that the beneficiary’s research “had set her apart from other scientific researchers in the field.” Faculty members at the University of Pittsburgh wrote most of the letters of support.  The VSC further noted that “it has not been shown that [the beneficiary’s] research is of inherently greater value than research that is currently underway at other institutions.”  The AAO reversed, based on new letters submitted from referees not associated with the beneficiary or the University of Pittsburgh.  The beneficiary’s work was also cited in several journals.  Finally, the petitioner submitted anonymous reviewer notes from the peer review of one of the beneficiary’s publications.  The AAO noted that the peer review process is anonymous and therefore is not influenced by personal knowledge of the beneficiary.

Matter of [name not provided]   File No.: WAC 98-072-50254, California Service Center (AAO, July 13, 1999)

Xx Immigr. Rep. Xx 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 Cristina Perez Gonzalez (Los Angeles, CA)

Summary of Decision:

The petitioner was a linguistic researcher who was engaged in developing a program to aid speakers of non-traditional American English in making the transition to standard American English.  At the time of filing, the petitioner was employed by Compton Unified School District (California), and was a part-time instructor at two colleges.  The petitioner emphasized that his work would benefit public education in urban areas. He argued that improving public education, particularly in under-funded school districts, is in the national interest.

The California Service Center and the AAO found that the petitioner did not meet the standards set forth in Matter of New York State Dept. of Transportation.  While the AAO accepted that improving public education in urban areas was in the national interest, the petitioner had not, at the time of filing, actually developed a program that would improve education.  He submitted several letters of support from instructors in his Ph.D. program at UCLA, but did not show that his work had received attention from the field at large.  The AAO also rejected arguments that his graduation from one of the top linguistics programs in the country placed him above others in his field.  The AAO also questioned the sincerity of the letters of support, noting similarities in phrasing and capitalization anomalies.  Counsel argued that the director did not follow established case law, citing several non-binding, unpublished decisions.  The AAO refused to consider these cases, confining its arguments solely to a discussion of Matter of New York State Dept. of Transportation, as it is the only “‘case law’ directly relevant to the national interest waiver.”

An AAO Decision:

Matter of [name not provided]  

File No.: EAC 98-073-51364, California Service Center (AAO, June 21, 1999) Xx Immigr. Rep. Xx 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 Jo Amanda Covey (San Francisco, CA)

Summary of Decision:

The petitioner was a non-profit educational organization that promotes traditional Tibetan performing arts.  It sought to employ the beneficiary as an educational program director.  The petition failed on two counts.  First, as the beneficiary did not possess an advanced degree, he was subject to the test for exceptional ability.  He did not fulfill the minimum three of six standards set forth in 8 C.F.R § 204.5(k)(3)(ii).  He did not possess the academic record from his educational institution, and the AAO did not accept a letter from the institution’s artistic director as evidence of the beneficiary’s graduation.  The AAO also refused to recognize an award for best opera singer at a festival of Tibetan culture as evidence of achievements or contributions to the industry, as the beneficiary’s prospective position was program director in the arts, not as a performer per se.  The AAO found that the beneficiary did not qualify as an alien of exceptional ability.

Second, the AAO found that the beneficiary’s work would not be national in scope.  Letters of reference, although from a geographically diverse group of referees, emphasized the beneficiary’s impact on the Tibetan exile community and in the preservation of Tibetan culture in the face of Chinese Communist oppression.  Further, the AAO found that, even if it were in the national interest to preserve Tibetan culture, it was not shown that removing the beneficiary from the Tibetan exile community in India would further this cause.

The AAO also held that the scarcity of the beneficiary’s skills are not reason for a national interest waiver, as a labor certification’s chance at success is enhanced by the scarcity of the skills required.  Arguments as to the past successes of the petitioner were found irrelevant to the beneficiary’s qualifications.  Finally, Congressional documents relating to enhanced cultural exchange opportunities with Tibetans were found irrelevant as well, because “exchange” opportunities do not equate to “immigration” opportunities.

Matter of [name not provided]  

File No.: EAC 98-076-51659, Vermont Service Center (AAO, June 21, 1999) Xx Immigr. Rep. Xx 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 James J. Orlow (Philadelphia, PA)

Summary of Decision:

The petitioner seeks a national interest waiver as the president of IBK Corporation, a firm founded by the petitioner, specializing in exporting construction materials and residential finishing components to Russia and neighboring countries.  She was educated in Russia (then the Soviet Union) and worked in exporting building materials to Russia for several years before founding IBK Corporation.  Counsel argued that the petitioner’s business created millions of dollars of business for U.S. manufacturers and familiarized Russian companies with U.S. materials and products, thereby opening the door to many future business opportunities.  Manufacturers that sold their products to IBK Corporation wrote letters of support describing increased profits and creation of new jobs with the access to the Russian market that IBK provided.

The Vermont Service Center denied the petition, arguing that the petitioner failed to show that she would serve the national interest to a greater extent than other exporters of business materials.  On appeal the petitioner submitted several letters from her customers to the effect that they depended on her knowledge of the Russian market to grant them access to that market.  One executive stated that because of the petitioner, Moscow has become the largest export market for interior building products manufactured in the United States.  The AAO noted that the labor certification process presents a problem, in that the petitioner founded and heads her own company.  Counsel argued that labor certification could not possibly succeed, as the petitioner clearly could not find a replacement for herself as head of IBK.

While the AAO emphasized that “it should not by any means be construed that working in the export business, or owning a business which would complicate the labor certification, are prima facie sufficient arguments in favor of granting a national interest waiver,” it did grant the waiver to this petitioner.  The AAO stressed that the petitioners business supported between 201 and 270 jobs, while reducing the trade deficit.  Therefore, the benefit of the petitioner’s work was national in scope and her special skills made her irreplaceable.

Matter of [name not provided]

File No.: WAC 98-078-56639, California Service Center (AAO, July 19, 1999) Xx Immigr. Rep. Xx 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 Nancy Fuller-Jacobs (San Diego, CA)

Summary of Decision:

The petitioner produced miniature capacitors.  It sought to employ the beneficiary as a designer of tape and reel machines.  At present, Japanese firms dominate the world market in this area.  The petitioner submitted a letter explaining that hiring the beneficiary would allow for the company, and therefore the United States, to compete in the lucrative tape and reel market.  Their estimates indicate that the company stands to sell over $25 million per year by manufacturing these machines.

The California Service Center (CSC) denied the petition on the grounds that the petitioner failed to produce any supporting evidence.  The company supplied only their own annual report and the beneficiary’s degrees as evidence.  Absent any evidence to the contrary, the CSC found that the beneficiary’s accomplishments did not distinguish him from other mechanical engineers.

On appeal, counsel submitted a brief explaining that there are only four individuals in the country qualified to design tape and reel machines.  Again, counsel failed to submit evidence to prove this assertion.  Further, the AAO argued that such a shortage of workers would make the labor certification process a more viable option for the petitioner.

The petitioner also submitted several affidavits, all of which were prepared several months before the petition was filed.  Apparently, these affidavits were prepared as evidence to support a petition by the beneficiary’s previous employer for an immigrant visa.  As all of these affidavits related to the beneficiary’s benefit to his past employer, the AAO considered them irrelevant to the present petition.

Finally, the AAO found that the beneficiary’s benefit to his employer did not constitute a national interest issue, despite the beneficiary’s purported potential to create jobs and lessen the trade deficit.  The AAO found that the petitioner failed to prove that an economic benefit outside the employer would result from the beneficiary’s employment. 

Editor’s comment: Compare this denial with File No. EAC 98-076-51659, summarized above, involving the president of a company that exported construction materials to Russia. In that case, decided about one month before this denial, the AAO recognized that reducing the trade deficit could be a positive factor in granting a national interest waiver.

Matter of [name not provided]

File No.: EAC 98-101-54452, Vermont Service Center (AAO, June 21, 1999) Xx Immigr. Rep. Xx 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 Leonard Dauerman (Fort Lee, NJ)

Summary of Decision:

The beneficiary researched advanced atmospheric turbulence modeling, high performance computing methods and data-parallel techniques.  The practical application of his work was in airplane safety and large-scale weather computer prediction.  At the time of the petition he was working as a technical team leader on the External Communication Request Broker (ECBR) gateway system at Beechwood Data Systems, having changed his focus from turbulence studies to telecommunications.  The goal of the ECBR is to connect long-distance carriers with local Bell Telephone Companies.

The Vermont Service Center (VSC) denied the petition.  Among other things, the VSC noted that all of the referees for the petitioner employed or instructed him.  Although he had published several articles, the VSC found no evidence that his research stood above other researchers in his field. 

On appeal, the petitioner submitted several letters from researchers at AT&T and the U.S. Department of Energy’s Brookhaven Laboratory describing the importance of the petitioner’s work.  They pointed out that since 1984, while long-distance rates have dropped, the cost of local telephone service has risen.  The Telecommunications Act of 1996 opens local telephone service to competition.  However, one barrier to this competition is the technological challenge.  The petitioner’s work has led to important developments in fulfilling this challenge.

The petitioner further argues that a labor certification would “restrict the petitioner’s freedom of movement,” i.e. his ability to offer his services to other employers.  The AAO found this argument not only unpersuasive, but in fact a reason to require a labor certification.  Most referees pointed to the importance of his work at Beechwood Data Systems, and the labor certification process would keep him there.  In the end, however, the AAO granted the NIW on the basis of the petitioner’s research and its importance to the field of telecommunications.

Matter of [name not provided]

File No.: EAC 98-120-50192, Vermont Service Center (AAO, June 29, 1999)

Xx Immigr. Rep. Xx 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 Oliver G. Zhou (New York, NY)

Summary of Decision:

At the time of filing, the petitioner was a candidate for a doctoral degree at the Rutgers University College of Pharmacy.  He sought a national interest waiver as a pharmaceutical researcher.  His research focused on delivering two complementary drugs simultaneously at different rates using a single delivery system.  This would allow maximum therapeutic impact with minimal side effects.  He also developed a system that allowed for better testing of in vitro pulmonary drug delivery systems.  The Vermont Service Center (VSC) sent a request for further evidence, noting that the referees were limited to the petitioner’s co-workers and former professors.  In response, the petitioner submitted requests from researchers at several research institutions and pharmaceutical companies worldwide, seeking reprints of his articles.  The petitioner also submitted a letter from a research fellow at the National Cancer Institute of the National Institutes of Health.  Further, the petitioner submitted letters from researchers at various institutes that have adopted his research techniques.  These failed to persuade the VSC, however.

The VSC also noted in its denial that “significant implications [of research] will be recognized in the form of national/ international awards and publications in major media such as newspapers and television.”  The VSC held that while the broad range of referees submitted after the request for further evidence indicated a degree of renown, “national honors and prestigious awards” are the best evidence of the significance of the petitioner’s achievements.

The AAO reversed the denial, noting that the VSC’s standards apply to the EB-1-1 category, and that a national interest waiver does not require such a high standard.  The AAO found the broad geographic range of referees, in conjunction with the prospective impact of advanced pulmonary drug delivery systems on the pharmaceutical industry, sufficient to justify granting a national interest waiver.

Matter of [name not provided]

File No.: EAC 98-126-52358, Vermont Service Center (AAO, June 29, 1999) Xx Immigr. Rep. Xx 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:

The petitioner sought a national interest waiver as a computer engineer at Compaq Computer Corporation.  He held master’s degrees in both Physics and Electrical and Computer Engineering.  Several of his letters of support listed his accomplishments in the field of fusion research.  Because he is no longer in that field, the AAO found those letters to be irrelevant to the current petition.  Other letters discussed his benefit to his previous employer, Vicorp, both technically and as a link to Asian markets, but the letters did little to establish his benefit to the field as a whole.  The Vermont Service Center requested further evidence regarding the petitioner’s prospective national benefit.  In response, the petitioner stated that several companies had sought his services, and he recently accepted a position at Compaq.  This fact undermined his case, in that his letters of support discussed his importance as an employee of Vicorp.

An executive at Compaq submitted a letter arguing that companies such as Compaq lose business opportunities because of a lack of skilled technical workers.  The AAO dismissed this argument, as a shortage of qualified workers is the problem that the labor certification was designed to address.  If Compaq is correct in recognizing a scarcity of technical workers, then surely a labor certification would succeed.  The AAO was similarly unmoved by discussions of the importance of the telecommunications industry as a whole, as it was irrelevant to the qualifications of this particular petitioner.

Matter of [name not provided]

File No.: EAC 98-126-53308, Vermont Service Center (AAO, July 19, 1999) x Immigr. Rep. Xx Non-Precedent Decision AAO Designation: S Main Holding: National Interest Waiver granted Index of Issues: National Interest Waiver ross-reference: Immigration Law and Procedure § 39.04[4] Represented by Oliver G. Zhou

Summary of Decision:

The petitioner was a researcher in both semiconductors and rock and fluid physics, i.e. the pore structures of rocks that control the flow of oil and water.  The application of this research aided in oil and gas exploration.  The petitioner’s letters of support hailed his achievements in the field of rock and fluid physics, his contributions to the development of integrated circuits in China in the 1970’s, and his research into lipid chain disorder.  The Vermont Service Center (VSC) requested further evidence of the petitioner’s contribution to the national interest, as his witnesses were limited to his own employers and professors.  The petitioner then submitted three new letters, all from employees of the petitioner’s parent company.  These letters focused solely on the petitioner’s contributions to rock and fluid physics.  The letters emphasized the particular contributions of the petitioner’s research and the implications of furthering the general field of research.  The letters contained language such as “the success of his research in this area will have a significant impact upon the way in which we explore for hydrocarbons,” and stated that the petitioner’s research “will enable the oil industry to cut significant expenses in connection with locating a commercially feasible oil field for large-scale development.”  Another letter noted that the petitioner’s impact “has already been strongly felt by the oil industry, our profession, and the U.S. economy.”

The VSC denied the petition, opining that the petitioner had failed to show that his prospective benefit to the United States would be greater than other persons in the same pursuit.  On appeal, the petitioner submitted peer reviews of his manuscripts and a new letter of reference from a professor at Yale, who knew the petitioner only through his published research.  The AAO quoted this letter at length, as it traced his research in various fields and emphasized the impact it would have on the fields in general.  This letter, along with peer reviews that have traditionally impressed the AAO, proved that the petitioner “is recognized outside of his own immediate group of co-workers for having made significant advances.”

Matter of [name not provided]

File No.: EAC 98-135-53585, Vermont Service Center (AAO, July 14, 1999) Xx Immigr. Rep. Xx Non-Precedent Decision AO 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 Zhiyu Hu (Edison, NJ)

Summary of Decision:

The petitioner was a cancer researcher who, at the time of filing, held a temporary research position at New York University Medical Center (NYUMC).  Her research focused on carcinogenic metals and the production of mutagenic DNA.  In the initial petition, all of the witnesses were either researchers at NYUMC or at Beijing Medical University, where she studied before her current position.  The letters of support focused on the petitioner’s importance to a specific project, arguing that the project would be endangered without her participation.  The AAO found that this was not a reason to grant the petitioner an immigrant visa.  The position was a temporary one, and it would therefore be more appropriate for her to seek nonimmigrant status.

Further, despite the many national interest waivers that have been granted to cancer researchers and the undisputed importance of the field, the AAO found that the petitioner’s mere participation in cancer research does not entitle her to a national interest waiver.  The AAO was also unmoved by assertions of the importance of this particular research project.  Counsel pointed out the original discoveries the project yielded, but the AAO countered that competition for grant money makes it necessary for all research projects to produce new information.  Therefore, new discoveries do not distinguish this particular project from others.  The petitioner failed to produce published material showing that the scientific community at large recognized the unique importance of her project.  The petitioner did produce evidence of her own publication and citations of her work, but most of the citations were in articles authored by the petitioner herself or her collaborators.  The Vermont Service Center, as in past cases, mistakenly required that the petitioner produce mention of her research in major media, but the AAO recognized that this standard applies only to aliens petitioning in the EB-1-1 extraordinary ability visa category.

On appeal the petitioner submitted two new letters from a researcher at the National Institute of Allergy and Infectious Diseases and a toxicologist at the National Institute of Mental Health.  The AAO gave little attention to these letters, as the authors appeared to be experts in field other than cancer research. 

Matter of [name not provided]

File No.: EAC 98-141-52394, Vermont Service Center (AAO, July 19, 1999)Xx Immigr. Rep. Xx 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 Alan Lee (New York, NY)

Summary of Decision:

The petitioner appraised Oriental rugs and carpets.  He sought a national interest waiver to accept a permanent position at TAP International Group Corporation, where he had served as a consultant for three years.  The petitioner submitted several letters of support attesting to his unique abilities in appraising Oriental rugs, calling him one of only a few “specialists who can appraise the year the carpets were made, coloring, weaving, and origin.”  A senior vice president at Sotheby’s auction house argued that the petitioner’s association with TAP would enhance Sotheby’s business rapport with them and thereby “further trade relations between China and the United States.”  The AAO questioned the impact the Oriental rug trade has on Sino-U.S. trade relations and pointed out that the business done between TAP and Sotheby’s presumably represents only a small percentage of the Oriental rug trade

The AAO was also not persuaded by the argument that the petitioner’s expertise would allow him to share his knowledge with U.S. appraisers through lectures and workshops.  The AAO observed that the petitioner has been in the United States for three years.  If he has had such an impact, it should be demonstrable through the workshops and lectures he has presented.  No evidence of such contributions was submitted.  Additionally, his three years of employment as a consultant at TAP were not shown to have improved Sino-U.S. trade.

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