Let’s take a Look at an EB-2 NIW AAO non-precedential Sustained Appeal1 of Nov. 21, 2011The body of the text of the decisi...
Neither the statute nor the pertinent regulations define the term "national interest." Additionally,Congress did not provi...
to meet the [national interest] standard must make a showing significantly above that necessary        to prove the "prosp...
1. The Attorney Generals Authority           These arguments misapprehend the nature of the Board and the rule. The Board ...
established view of the Attorney General and the federal courts that an application for       section 212(c) relief filed ...
Services (USCIS) promulgated a rule setting forth new regulations for special immigrant        religious worker petitions....
The AAO also notes that the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "adegree of expertise si...
Six witness letters accompanied the petitioner‟s initial submission, four from University of _______faculty members and tw...
Professor                       chair of             Department of Chemistry and Biochemistry, signed a letterdated Novemb...
and how it relates to, or is a reflection of, the citation rate. The full reasoning on that point is notexplained within t...
The director did not even mention this aspect of the record, much less explain why it should not beconsidered a major fact...
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Critique of Nov 21, 2011 EB-2 NIW AAO sustained appeal 12-15-2011


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Postdoctoral associates CAN qualify IF their individual accomplishments to date are SUBSTANTIAL and show promise of PROSPECTIVE benefit to the National Interest like this NANOSCIENTIST!

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Critique of Nov 21, 2011 EB-2 NIW AAO sustained appeal 12-15-2011

  1. 1. Let’s take a Look at an EB-2 NIW AAO non-precedential Sustained Appeal1 of Nov. 21, 2011The body of the text of the decision under review is shown below. Interspersed withinthat text are comments and suggestions clearly delineated as not a part of the AAOdecision. Some emphasis has been added and should be easily identifiable as such.DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visapetition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO willsustain the appeal and approve the petition.The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act(the Act), 8 US.C. § 1153(b)(2), as a member of the professions holding an advanced degree. Thepetitioner is a postdoctoral research associate at the University of . Thepetitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification,is in the national interest of the United States. The director found that the petitioner qualifies forclassification as a member of the professions holding an advanced degree but that the petitioner had notestablished that an exemption from the requirement of a job offer would be in the national interest of theUnited States.On appeal, the petitioner submits a brief from counsel.Section 203(b) of the Act states, in pertinent part: (2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability. -- (A) In General. -- Visas shall be made available ... to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States. (B)Waiver of Job Offer- (i) ... the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an aliens services in the sciences, arts, professions, or business he sought by an employer in the United States.The director did not dispute that the petitioner qualifies as a member of the professions holding anadvanced degree. The sole issue in contention is whether the petitioner has established that a waiver of thejob offer requirement, and thus a labor certification, is in the national interest.1 Unpublished decision can be found at: AILA InfoNet Doc. No. 11120778. (Posted 12/07/11). The alien wasrepresented in the case by Richard Averwater of Memphis, TN.Critique of November 21, 2011, AAO NIW Sustained Appeal Page 1
  2. 2. Neither the statute nor the pertinent regulations define the term "national interest." Additionally,Congress did not provide a specific definition of "in the national interest." The Committee on theJudiciary merely noted in its report to the Senate that the committee had "focused on national interest byincreasing the number and proportion of visas for immigrants who would benefit the United Stateseconomically and otherwise...." S. Rep. No. 55, 101st C o n g ., 1st Sess., 11 (1989).I disagree with the following statement in the decision because it falls short of being useful andignores the foundation that the statute and Committee Report provide upon which to build aworkable framework.In other words, it‟s a cop-out. Neither the statute nor the pertinent regulations define the term "national interest."On the contrary, in addition to the statement from the Committee Report quoted above, the actualstatute, at the very least provides categories within which to define the contexts of “nationalinterest” in which to demonstrate the desired prospective benefit to be made by qualified EB-2 alienseeking the additional waiver. INA § 203(b)(2)(A) tells us that the alien seeking the waiver mustshow that (s)he “will substantially benefit prospectively the national economy, cultural oreducational interests, or welfare of the United States.”Ultimately, the evidence must show that the granting of the waiver of a job offer and/or the usuallabor certification process for this alien will serve the National Interest(s) in any of the following asthey relate to a substantial prospective beneficial effect in the: o National Economy, o National Cultural Interests, o National Educational Interests, or o National Welfare of the United States.  It is always In The National Interest to Promote the “General Welfare” especially when we recall, and take into account these very well known words: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT),published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states: The Service [now U.S. Citizenship and Immigration Services] believes it appropriate to leave the application of this test as flexible as possible, although clearly an alien seekingCritique of November 21, 2011, AAO NIW Sustained Appeal Page 2
  3. 3. to meet the [national interest] standard must make a showing significantly above that necessary to prove the "prospective national benefit" [required of aliens seeking to qualify as "exceptional."] The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits.The above is a good example of the AAO‟s well developed and longstanding practice ofrecognizing both Congressional and Executive Intent. This practice has been developed out ofnecessity because AAO has so little in the way of regulations of its own to guide its procedures andanalyses. However, even though the described approach appears to have been put into practice inthe instant case, this decision does not spell out the “how” of it in a manner that could be useful toaid the alien self-petitioner‟s or Counsel‟s understanding of AAO‟s complete reasoning behind theultimate decision. Sources of “Executive Intent”The primary source of statements of official Executive Intent are the specific rules within the Codeof Federal Regulations (CFR) on a given topic or issue. Agencies also create and publish Policy andProcedural manuals and memoranda as guidance for their employees. They may even publishpractice advisories, technical assistance letters2, or legal opinions of its counsel for customers andthe practitioners before them.In addition to the aforementioned items, there is another, oft-overlooked source of Executive Intent.The importance of the explanatory material and background discussion included in a rule‟ssupplementary information and background portions of the FR notices as well as the publiccomments and official responses to them is that this material can have binding effect as a publishedofficial interpretation.An example of rulemaking Executive Intent is illustrated and found in 67 FR 54877-54905. OnAugust 26, 2002, DOJ published on behalf of the Board of Immigration Appeals, a final rule,effective September 25, 2002, entitled: “Procedural Reforms To Improve Case Management” which included: ***** “B. General Comments Relating to the Role and Independence of the Board Some commenters argued that the provisions of this rule, either individually or in combination, would adversely affect the fairness or effectiveness of the Boards adjudications by limiting the independence and perceived impartiality of the Board. Some commenters criticized the provision in Sec. 3.1(a)(1) of the proposed rule that the Board members act as the “delegates” of the Attorney General in adjudicating appeals,…........2 http://www.justice.gov/crt/about/osc/htm/techletters.php DOJ/CRT/OSC Technical Assistance Letters andhttp://www.justice.gov/crt/about/osc/pdf/publications/TAletters/FY2011/138.pdf an EB-5 OSC Letter.Critique of November 21, 2011, AAO NIW Sustained Appeal Page 3
  4. 4. 1. The Attorney Generals Authority These arguments misapprehend the nature of the Board and the rule. The Board is an administrative body within the Department, and it is well within the Attorney Generals discretion to develop the management and procedural reforms provided in this rule…. [The Board has expressly acknowledged, for example, that the Attorney Generals determination of a legal issue in interpreting the Act is binding on the Board and the immigration judges, even if that determination is reflected in the SUPPLEMENTARY INFORMATION to a rule rather than in the text of a rule or in an Attorney General or OLC Opinion. See Matter of A-A-, 20 I&N Dec. 492, 502 (BIA 1992)…]…....” Official Recognition of Rulemaking Expressions of Executive IntentMatter of A-A, 20 I&N Dec. 492 (BIA 1992)3 (excerpt below) specifically dealt with an alien whohad been convicted of murder and sought relief under former INA § 212(c). Even in thatundoubtedly extremely critical and crucial matter, the BIA acknowledged the weight to be given tothe information contained in the Supplementary Information associated with the promulgation of asubstantive regulatory rule. “Pursuant to his authority under section 103(a) of the Act, 8 U.S.C. § 1103(a) (1988), the Attorney General promulgated a regulation governing the filing of applications for section 212(c) relief under the amended Act. See 8 C.F.R. § 212.3 (1992). Issued 2 months before the enactment of the 1991 Amendments, this regulation parrots the language of the statutory bar as enacted by the 1990 Act. The regulation directs a district director or immigration judge to deny an application for advance permission to enter under section 212(c) of the Act if the alien has been convicted of an aggravated felony, as defined by section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. II 1990), and has served a term of imprisonment of at least 5 years for such conviction. Id. In the supplementary information published with the regulation, the Attorney General made clear that "under the prevailing interpretation, the phrase shall apply to admissions as used in section 511(b) of [the 1990 Act] refers to all applications for relief pursuant to section 212(c) of the Act submitted after November 29, 1990, whether at a port of entry or in subsequent proceedings before a district director or Immigration Judge." 56 Fed. Reg. 50,033-34 (1991) (supplementary information).22 The Attorney General has thereby determined that the statutory bar to section 212(c) relief shall apply only to those applications submitted after November 29, 1990. We are therefore bound by his determination in this regard.23” At p. 502Footnotes in Original: “22 The supplementary information accompanying the regulation clarified that this interpretation of the phrase, "shall apply to admissions," is consistent with the long-3 http://www.justice.gov/eoir/vll/intdec/vol20/3176.pdfCritique of November 21, 2011, AAO NIW Sustained Appeal Page 4
  5. 5. established view of the Attorney General and the federal courts that an application for section 212(c) relief filed in the context of deportation proceedings is equivalent to one made at the time an alien physically seeks admission into the United States. See 56 Fed. Reg. 50,033 (1991) (supplementary information); see also Tapia-Acuna v. INS , 640 F.2d 223 (9th Cir. 1981); Francis v. INS , 532 F.2d 268 (2d Cir. 1976); Matter of Hernandez- Casillas, supra ; Matter of Smith , 11 I&N Dec. 325 (BIA 1965); Matter of S- , 6 I&N Dec. 392 (BIA 1954; A.G. 1955). 23 Determinations and rulings by the Attorney General with respect to all questions of law are binding on this Board and the immigration judges. See section 103(a) of the Act; Matter of Fede, 20 I&N Dec. 3106 (BIA 1989); Matter of Anselmo, 20 I&N Dec. 3105 (BIA 1989); Matter of Bilbao-Bastida, 11 I&N Dec. 615 (BIA 1966), affd, 409 F.2d 820 (9th Cir.), cert. dismissed, 396 U.S. 802 (1969).”The BIA still finds that it lacks jurisdiction to consider broad constitutionality issues when an alienchallenges a statute. On the other hand, it can and does analyze the due process issues created and/oraddressed by regulations that interpret statutes as well as policy statements as to how the statutesand regulations will be applied to cases. The AAO also has a role to play in these considerations buthas not issued many actual precedents on topic or much of anything else.For instance, Matter of Cruz De Ortiz, 25 I&N Dec. 601 (BIA 2011), includes: “It is clear that neither we nor the Immigration Judges have authority to rule on the constitutionality of the statutes we administer. See Matter of D-R-, 25 I&N Dec. 445, 456 (BIA 2011); Matter of Gonzalez-Camarillo, 21 I&N Dec. 937, 940-42 (BIA 1997) (holding that we would not address the respondent‟s equal protection argument because we lack jurisdiction to consider the constitutionality of the Act); Matter of Cenatice, 16 I&N Dec. 162, 166 (BIA 1977).”The BIA further explained in Matter of Figueroa, 25 I&N Dec. 596 (BIA 2011): “When interpreting statutes and regulations, we look first to the plain meaning of the language and are required to give effect to unambiguously expressed intent. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); Matter of F-P- R-, 24 I&N Dec. 681, 683 (BIA 2008). Executive intent is presumed to be expressed by the ordinary meaning of the words used. Matter of F-P-R-, 24 I&N Dec. at 683; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). We also construe a statute or regulation to give effect to all of its provisions. Matter of E-L-H-, 23 I&N Dec. 814, 823 (BIA 2005); Matter of Masri, 22 I&N Dec. 1145, 1148 (BIA 1999).” Another AAO “Less Than Official” Recognition of Rulemaking Expressions of Executive IntentFrom a non-precedent AAO Decisions at: Jan132010_02C1101.pdf “As required under section 2(b)(l) of the Special Immigrant Nonminister Religious Worker Program Act, Pub. L. No. 110-391, 122 Stat. 4193 (2008), U.S. Citizenship and ImmigrationCritique of November 21, 2011, AAO NIW Sustained Appeal Page 5
  6. 6. Services (USCIS) promulgated a rule setting forth new regulations for special immigrant religious worker petitions. Supplementary information published with the new rule specified: "All cases pending on the rules effective date . . . will be adjudicated under the standards of this rule. If documentation is required under this rule that was not required before, the petition will not be denied. Instead the petitioner will be allowed a reasonable period of time to provide the required evidence or information." 73 Fed. Reg. 72276, 72285 (Nov. 26, 2008). Section 557(b) of the Administrative Procedure Act (APA), 5 U.S.C. § 557(b), provides that an initial agency decision is not final if "there is an appeal to, or review on motion of, the agency within time provided by rule." As this case was pending on appeal when the regulation went into effect, it is therefore subject to the new rule.ORDER: The matter is remanded to the director, California Service Center, for the issuance of arequest for evidence (if necessary) and a new decision in accordance with the requirements of thenew regulation published at 73 Fed. Reg. 72276 (Nov. 26, 2008). If the new decision is adverse tothe petitioner, it shall be certified to the AAO for review.”Matter of New York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Comm‟r 1998), hasset forth several factors which must be considered when evaluating a request for a national interestwaiver. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit.Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitionerseeking the waiver must establish that the alien will serve the national interest to a substantially greaterdegree than would an available U.S. worker having the same minimum qualifications.NYSDOT was the very last AAO Precedent published under the auspices of Legacy INS. AAO didnot publish another Precedent until the two of October 20, 2010. Both Chawathe and Al-Wazzan hadbeen decided years before, on January 11, 2006, and January 12, 2005, respectively. After thedirector denied the underlying immigrant visa petition as a multinational executive or managerpursuant to section 203(b)(1)(C) of the Act, 8 U.S.C. § 1153(b)(1)(C) (2000), the petitioner (AlWazzan (USA), Inc. dba “Prime Casting,”) filed a complaint for declaratory and injunctive relief inthe United States District Court, Central District of California. Al Wazzan (USA), Inc. v. Tom Ridge,CV04-6575-NM (RZX) (filed Aug. 9, 2004). On November 15, 2006, the district court enteredjudgment in favor of the Government.It must be noted that, while the national interest waiver hinges on prospective national benefit, it clearlymust be established that the alien‟s past record justifies projections of future benefit to the nationalinterest. The petitioners subjective assurance that the alien will, in the future, serve the national interestcannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is usedhere to require future contributions by the alien, rather than to facilitate the entry of an alien with nodemonstrable prior achievements, and whose benefit to the national interest would thus be entirelyspeculative.The preceding is merely laying the groundwork for AAO‟s approach to assessing one‟s prospectivenational benefit based on a proven record of accomplishment. This is a rather well settled point.Critique of November 21, 2011, AAO NIW Sustained Appeal Page 6
  7. 7. The AAO also notes that the regulation at 8 C.F.R. § 204.5(k)(2) defines "exceptional ability" as "adegree of expertise significantly above that ordinarily encountered" in a given area of endeavor. Bystatute, aliens of exceptional ability are generally subject to the job offer/labor certificationrequirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a givenalien seeks classification as an alien of exceptional ability, or as a member of the professions holding anadvanced degree, that alien cannot qualify for a waiver just by demonstrating a degree ofexpertise significantly above that ordinarily encountered in his or her field of expertise.While the regulation at 8 C.F.R. § 204.5(k)(2) provides a definition of “exceptional ability”, INA §203(b)(2)(C) informs us as to the “Determination of exceptional ability. - In determining undersubparagraph (A) whether an immigrant has exceptional ability, the possession of a degree,diploma, certificate, or similar award from a college, university, school, or other institution oflearning or a license to practice or certification for a particular profession or occupation shall not byitself be considered sufficient evidence of such exceptional ability.”The instant case is that of a member of the professions holding an advanced degree. This self-petitioner is a postdoctoral research associate, a nanoscientist. As an advanced degree professional,this nanoscientist is in the same starting position as any alien of exceptional ability, both qualifyfor classification as the beneficiary of an EB-2 immigrant visa.When it comes to seeking the additional benefit of a National Interest Waiver (NIW) either mustshow full eligibility for that NIW. The NYSDOT criteria and the individualized approach from theFR Rulemaking Supplementary Information apply to both equally after first being determinedclassifiable as an EB-2 permanent immigrant worker.The petitioner filed the Form I-140 petition on December 28, 2009. The petitioners initial submissionincluded documentation showing that the petitioner earned a B.S. in chemistry and biology from theUniversity of the . He then studied biochemistry for a year at -University, before transferring to the University of and earning a Ph.D. inchemistry.The petitioners initial submission included copies of four published articles that he co-authored, alongwith lists of other articles that have cited the petitioners articles:"Photochemical Instability of CdSe Nanocrystals Coated by Hydrophilic Thiols," 2001. 322 citations."Photoluminescence Upconversion in CdTe Quantum Dots," 2003. 28 citations."Size Dependent Dissociation pH of Thiolate Ligands from Cadmium Chalcogenide Nanocrystals,"2005. 78 citations."Surface Ligand Dynamics in Growth ofNanocrystals," 2007. 22 citations.In total, the petitioner showed 450 citations of his work, averaging 112 citations per article.The bulk of evidence initially submitted in support of the NIW request consisted of four scholarlyarticles garnering a combined total of 450 citations over a period of six to eight years (the articlesdate from 2001 through 2007, but the I-140 was filed in 2009) and six testimonials (AAO calledthem “witness letters” but they might also be described as affidavits). The citations and number ofarticles are meaningless without being placed within a proper context for comparative purposes.This aspect will be discussed again further on in this discussion, keep it in mind for later reference.Critique of November 21, 2011, AAO NIW Sustained Appeal Page 7
  8. 8. Six witness letters accompanied the petitioner‟s initial submission, four from University of _______faculty members and two from other institutions. The earliest-dated letter is from Dr. ______________,associate professor at the University of __________________. The letter, dated March 1, 2009, predatesthe other letters in the record by six to eight months. Dr. _______ stated: In my independent opinion, [the petitioner] is one of the top young scientists in the country, and is both nationally and internationally recognized for his extraordinary research work in the field of nanoscience and nanotechnology, with special emphasis on how surface chemistry affects the optical properties of nanomatcrials.... [The petitioner] has done pioneering work in various areas of nanomaterials science including developing new synthesis of tiny semiconductor particles, understanding how light affects the stability of the nanoparticle solution, and developing new ways to impart biological functionality to semiconductor nanoparticles. His work not only demonstrates impressive intellectual conttibutions to the field of nanomaterials research, but also includes novel technical and synthetic advancements, which are very valuable to other scientists. [The petitioner] is an expert in the surface chemical properties of novel nanometer scale materials that have new characteristics that can not be obtained from their macroscopic counter-parts. He possesses the ability to develop new strategies for materials synthesis and to combine these skills with a strong analytical background in order to fully characterize and more importantly to fully understand the nature of nanoparticle surface chemistry. Since nanometer scale materials have a huge percentage of atoms on the surface, relative to a macroscopic object, his work is of prime importance to researchers in the field as well as those looking to use nanoparticles in a practical manner.... For someone at his very early career stage, [the petitioner] has also established a strong record of research accomplishments and leadership in the area of nanomaterials. He has published papers in the top-rated chemical journals in the world.Although the quoted part of the letter in support of the petition is but an excerpt, it is quiteinformative and revealing. The quoted letter was the first and it appears that either three thatfollowed it copied from it OR all four were based on a template. I feel that AAO took the mostconservative and wisest approach by lowering the weight but not dismissing these testimonialscompletely as the initial adjudicator appears to have done. Look at them from BOTH angles, neitherof which is as good as completely individualized testimonials.IF the first dated letter is an original honest assessment that was copied then the claims made arehigh praise. This situation would garner slightly more weight in that three additional academicsagreed with that assessment and found little to add or delete from a letter that they were willing tosign. IF all four started with a template provided by the alien self-petitioner (or Counsel), then themanner in which the information is presented is intentionally as flattering as possible. However, thefact that the alien was able to find four academics who agreed to sign off cannot be dismissed. Onceagain, this is less impressive than obtaining all individualized testimonials. The fact that it took thealien a period of six to eight months to secure all six letters is ambiguous at best and therefore besttreated as neutral. The following three highly redacted paragraphs discuss the letters.Critique of November 21, 2011, AAO NIW Sustained Appeal Page 8
  9. 9. Professor chair of Department of Chemistry and Biochemistry, signed a letterdated November 11, 2009. Much of the text of Prof. „s letter repeats Dr. „s letter evenincluding the idiosyncratic use of "can not" rather than "cannot," and "counter-parts" instead of"counterparts." . Professor _________ signed a November 23, 2009 letter that also included someof the same language. A September 9, 2009 letter from Professor __ _ _ _ _ _ _ __ _ _ o f _ __ _ _ _ _ _ _ __ _ _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ likewise includes passages quoted from Dr. _____________‟s letter. It is not clearwhether these witnesses copie[d] from Dr. _________‟s letter or, instead, all of the witnesses (including Dr._______) relied on a template provided by an unspecified author.The letters that do not borrow heavily from Dr. _______‟s letter also do not provide many details aboutthe petitioners work. _____ Professor ________________ who supervised the petitioners doctoralresearch, asserted that the petitioner is one of the top young chemists in the country." Prof. ____ statedthat the petitioner "performed well" in his group, but offered no details about the nature or importanceof his work.Dr. _______________, associate professor at the University of ___________________, praised thepetitioners abilities as a teacher, but acknowledged that the petitioner‟s “research topics are not in myarea of expertise."On February 2, 2010, the director issued a request for evidence. The director noted that many lettersdescribed the petitioner‟s work as "revolutionary,” but found that the petitioner had submitted nodocumentary evidence to support that claim. The director acknowledged the petitioners submission of"copies of four articles" published while the petitioner was a student, but did not mention their citationhistory. The director instructed the petitioner to submit evidence to show the national importance of hiswork, and to establish that it is in the national interest for the petitioner to do that work, instead of aqualified United States worker.The above is a summation of the Center Adjudicator‟s initial actions taken in the name of the CenterDirector. It also reveals to this critic, that the adjudicator missed a few pertinent points, failed toisolate the appropriate issues, and lacked a sufficient understanding of the proper standards to apply.Without seeing the RFE, one can only guess if it was informative or vague, useful or confusing.In response, the petitioner submitted background information about his research specialty and thegrowing nanotechnology industry. In terms of his own contributions, the petitioner noted that otherresearchers around the country and the world have cited his published work. The petitioner observedthat three of his articles appeared in the Journal of the American Chemical Society, "the most citedjournal in chemistry" with an impact factor of 8.091 in 2008. Every article claimed by the petitionerwell exceeds that citation rate.The alien provided additional information in an effort to enlighten the adjudicator on the specificcontext in which to judge his/her place and relevance within the nascent but growing nanoscience,nanomaterials, and nanotechnology field. I am no biochemical scientist but even a layperson islikely to have heard of the cited professional journal. By comparison, you don‟t have to be an M.D.to have heard of the New England Journal of Medicine or JAMA (formerly the Journal of theAmerican Medical Association). The last bit in the AAO decision highlighted above suggests thatthe alien provided sufficient information to impress the AAO Appeals Officer of the relevance of,and the prestige of the cited publication. AAO was also evidently impressed by the “impact factor”Critique of November 21, 2011, AAO NIW Sustained Appeal Page 9
  10. 10. and how it relates to, or is a reflection of, the citation rate. The full reasoning on that point is notexplained within the AAO decision in a manner such that it might be useful to others seekingguidance, but it seems to have had an impact on the instant decision.The director denied the petition on August 20, 20I 0, stating that the petitioner "failed to submit any ofthe information the Service requested." The director observed that the importance of the field is notsufficient to show eligibility. The director stated that the petitioners materials "made reference to workaccomplished mostly throughout the years he was completing his studies."The initial decision at TSC shows a specific need for additional training. It also seems to support thelowering of demands for “fast” decisions and instead focusing on making “correct” decisionsinitially. Haste makes waste in adjudications. USCIS Officers are inundated with excessiveinformation without an opportunity to digest it properly. Open discussions on adjudication issuesshould be encouraged as a means to improve quality instead of discouraged as “unproductive” interms of an overemphasis on quantity alone. For crying out loud, private sector attorneys chargelarge hourly rates to prepare these applications and petitions which often cost much more than whatUSCIS charges for adjudicating the same case. Raise the fees if that‟s what it will take to make alarger proportion of accurate initial decisions. People with unrealistic expectations will continue tofile appeals anyway. Enough said on that point.On appeal, counsel states that the directors "written decision did not detail how he or she reached [the]conclusion" "that Petitioner did not establish that a waiver would be in the national interest." Counselnotes that the director identified "various factors to be considered," the director did not discuss how thepetitioners evidence measured up to those factors.While AAO hit the nail squarely on the head in the above paragraph in identifying a problem, it didnot answer the questions that this appeal raised on the underlying issues. AAO acknowledged thatthe director identified "various factors to be considered," and that the director did not discuss how thepetitioners evidence measured up to those factors. AAO didn‟t spell out any factors either!Counsel persuasively asserts that the intrinsic merit and national scope of the petitioner‟s work are notin dispute, and asserts that the petitioner "has proven himself to be a noted author" with several citedarticles. Counsel also asserts that distinguished scholars have provided letters in support of the petition.(For reasons already discussed, the witness letters have limited favorable weight.)Hearken back to the earlier discussion on the weight given to the testimonial letters. The aboveparenthetical is a heck of a lot more succinct than the discussion in this critique.The AAO finds considerable merit in many of counsel‟s assertions. The record supports counselsclaim that the director listed various factors for consideration, but offered little if any explanation as towhy the petitioners evidence is inadequate relative to those factors. What were/are those factors?The AAO takes particular note of the hundreds of documented citations of the petitioner‟s publishedwork. While the petitioner has not produced a large volume of published work, the articles he haspublished have been widely influential, as demonstrated objectively by their very high citation rate.Critique of November 21, 2011, AAO NIW Sustained Appeal Page 10
  11. 11. The director did not even mention this aspect of the record, much less explain why it should not beconsidered a major factor strongly in favor of approval of the petition.Other assertions by counsel are less persuasive (such as a discussion of a predicted worker shortage),but the weaknesses of these arguments do not detract from the stronger points.Counsel made a rookie mistake. You cannot assert issues that would easily support a successfullabor certification process while seeking a labor certification waiver! AAO properly dismissed thisirrelevant non-issue in a single sentence and correctly chose not to treat the attorney‟s mistake as anegative factor in assessing the overall merits of the case.With respect to the directors observation that the petitioner was a student when he published his citedarticles, the NYSDOT decision states: "the aliens past record need not be limited to prior workexperience.... The Service here does not seek a quantified threshold of experience or education, butrather a past history of demonstrable achievement with some degree of influence on the field as awhole." Id. at 219 n.6. If the petitioners published research has been heavily influential in the field, asappears to be the case, then it is not particularly important that he was a student at the time he conductedand published that research. It has no effect on the content of the publications.The record objectively indicates that the petitioner has performed consistently influential research in hisspecialty. The director did not identify any persuasive negative factors. Therefore, the petitioner hasestablished by preponderance of evidence that he stands out in his field to a degree that a waiver of thejob offer requirement would serve the national interest.It does not appear to have been the intent of Congress to grant national interest waivers on the basis ofthe overall importance of a given field of research, rather than on the merits of the individual alien.That being said, the evidence in the record establishes that the scientific community recognizes thesignificance of this petitioners research rather than simply the general area of research. The benefit ofretaining this aliens services outweighs the national interest that is inherent in the labor certificationprocess. Therefore, on the basis of the evidence submitted, the petitioner has established that a waiverof the requirement of an approved labor certification will be in the national interest of the United States.The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act,8 U.S.C. § 1361. The petitioner has sustained that burden. Accordingly, the decision of the directordenying the petition will be withdrawn and the petition will be approved.ORDER: The appeal is sustained and the petition is approved.Based solely on the information in this decision, I agree with the outcome. The little evidencediscussed is persuasive. The little contextual information than can be gleaned from this decisionlends support for a National Interest Waiver for this Nanoscientist. Perhaps he will help furtheradvance the recent groundbreaking retinal prosthesis research that was announced just the otherday by the National Science Foundation. Microscopic eye implants making the blind see. Whoknows?Joseph P. Whalen December 15, 2011Critique of November 21, 2011, AAO NIW Sustained Appeal Page 11