NIW #5:Denials Analysis

NIW Practice & Theory: #5 An Analysis of Recent NIW Denials The Administrative Appeals Office (“AAO”) is the adjudicating tribunal that sits directly above the four service centers. AAO has appellate jurisdiction on over 40 different types of immigration petition including NIW based I-140’s. When an NIW petition is denied and an appeal is filed, AAO adjudicates the final ruling on the case. These decisions provide guidance for immigration officers in the correct interpretation of immigration law, regulations and policy. Our office has conducted a careful analysis of the NIW appeal cases published in 2004 and 2005 by the AAO. These rulings provide an excellent overview of the criteria that USCIS considers when adjudicating an NIW application. Of all the cases published by AAO in 2004 and 2005, a total of twenty-one (21) dealt specifically with NIW petitions. The tables below provide a summary of the different specialties and their denial/approval rates. Immediately following the tables is a detailed synopsis of each case and an analysis of why the AAO sustained or denied the appeal. Engineers: Ph.D. in Information Management Systems from U.C. Berkeley – Approved Ph.D. in Engineering (Solid Mechanics) from Tsinghua University – Approved Ph.D. in Electrical Engineering from France – Denied Medical/Biological Sciences: Ph.D. in Microbiology from the University of Minnesota – Approved Ph.D. in Biochemistry from Indiana University – Denied Ph.D. in Biochemistry from Peking Union Medical College – Denied M.D. from Harbin Medical University – Denied Ph.D. in Crytogenetics from the University of Delhi – Denied Ph.D. in Zoology from India – Denied Chemists: Ph.D. in Chemistry (Atmospheric) from Arizona University – Denied Ph.D. in Chemistry (Organic) – Denied Physicists:: Ph.D. in Physics from Cornell University – Denied Ph.D. in Physics and Mathematics from Moscow State University – Approved Miscellaneous: Feng Shui Specialist – Denied Ph.D. in Economics from Ohio State University – Denied President and General Manager of Electric Company in P.R. China – Denied Attorney – Denied Artist – Denied (Two cases were dismissed due to untimely filings and one was deemed moot due to the petitioner’s successful Adjustment of Status under a different classification.) DETAILED CASE ANALYSIS: ENGINEERS We begin our case analysis with the three engineer petitioners – the other specialty fields will be treated in the following articles in this NIW Series. Computer Engineer (Information Management Systems) This case was originally denied by the California Service Center (“CSC”). The petitioner held a Ph.D. in information Management Systems from the University of California at U.C. Berkeley. The petitioner’s work dealt specifically with data mining by extracting consumer information from various databases to detect fraud, possible terrorist activity, and improve consumer activity predictions. AAO approved this case because of the quality of the authors of the letters of recommendation. Of particular interest is that all of the authors mentioned by AAO were from private companies such as IBM, PeopleSoft and E.piphany - this shows that for the engineering field, letters from private industry can be particularly persuasive and is not always necessary to get letters from universities or public agencies. The petitioner also had ten citations to his published works along with evidence that his work was frequently downloaded from the U.C. Berkeley website. AAO also pointed out that CSC was in error for requiring a showing of “urgency” for an NIW waiver. Electrical Engineer This case was originally denied by the Vermont Service Center (“VSC”). The petitioner in this case held a Ph.D. in Electrical Engineering from an unnamed university in France. His work focused on biomedicial optics and he was formerly employed at the Los Alamos National Laboratory. The AAO upheld VSC’s denial on several grounds. First, AAO pointed out that most of his recommendation letters were written by people he had either worked with or studied with, once again illustrating the importance of procuring letters from independent authors. Second, the petitioner failed to present any evidence of practical applications from his work – bald assertions in the recommendation letters without any evidentiary basis were considered unpersuasive. Third, although the petitioner submitted newspaper articles regarding his work, the article did not mention the petitioner by name and thus were also deemed unpersuasive. Finally, while the petitioner had an extensive publication list of over 27 articles, he failed to present evidence of citations to his published works, which would have demonstrated some degree of influence on the field as a whole. This final point is reiterated time and time again in the AAO appeal denials: the number of citations, not publications, is the determinant factor in NIW cases. (Although citations are especially important they are not necessary for every case, as we will see below) Engineering (Solid Mechanics) This case was also originally denied by CSC. The petitioner held a Ph.D. in Engineering from Tsinghua University in P.R. China. The petitioner’s work focused on improving the ability to simulate damage to an aircraft by developing a software package that allowed for sophisticated damage tolerance analysis and safe-life estimation methodology. AAO sustained the appeal and approved the case because of the real-world practical applications from his research. Because of intellectual property issues and patent rights, engineers may not have the extensive publication lists and citations to their work that are possible with the other sciences. AAO pointed out in this case that evidence such as licensing agreements and affirmations from government and industry officials can also be considered. In fact, the petitioner only had two published articles in peer-reviewed journals with no citations. This appeal was heavily dependent on the quality of the letters of recommendation. The authors for these letters included the Chief Scientist at Galaxy Scientific Corporation and a senior scientist at the U.S. Army Research Office who all licensed and utilized the petitioner’s software. AAO pointed out that in engineering cases, letters from clients are more persuasive evidence than letters from collaborators in the field. We will continue our detailed analysis of the appealed NIW cases in our next installment of the NIW series beginning with the medical/biology field. As always, jclawoffice.com is committed to providing our readers with the advice and analysis they need to stay informed of even the most difficult aspects of immigration law theory. This is the fifth installment of a ten part series discussing the essential elements of a successful NIW Petition. Keep checking back for additional installments and new treatises on various subjects affecting you and your immigration issues. ———————————————————————————————— 陳丹虹律師事務所提供 Law Offices of Jean D. Chen 2107 N. 1st Street, Suite 300 San Jose, CA 95131 Tel: [phone] Fax: [phone] E-mail: [e-mail] www.jclawoffice.com