CHANGES TO NATIONAL INTEREST WAIVERS AND OUTSTANDING PROFESSORS AND RESEARCHERS
By Ken C. Gauvey, Esq.
The area of merit-based visas when it comes to research is complex. There are two avenues available for researchers that are similar; the National Interest Waiver and the Outstanding Professors and Researchers area. Generally, a foreign national can self-sponsor for an immigrant visa if they can prove that it is the country’s national interest that the foreign national be allowed to perform their work in the U.S. Researchers and scientists with a record of publication and successful research are the typical applicants for this type of visa. In addition, a foreign national can seek a visa based on being an Outstanding Researcher. However, because the value of any individual’s research becomes more and more subjective the further outside the circle of experts the research is exposed to, the adjudication of National Interest Waivers and Outstanding Research-based visas has suffered from a lack of standardization. New proposed changes and recent cases by the Administrative Appeals Office (AAO) may help eliminate some of the more unreasonable requests for additional evidence and outright denials issued by USCIS.
In a decision issued on November 21, 2011, the AAO outright reversed the decision of USCIS to deny a National Interest Waiver. In that case, the researcher published four articles in the field of nanoscience. The articles were cited collectively 450 times by various articles written by other scientists throughout the world. In addition to this evidence, the Petitioner provided numerous letters of recommendation from various experts in the field attesting to the Petitioner’s abilities. USCIS denied the petition, in part, because most of the research was performed while the Petitioner was a student and because the letters were all apparently written by the same author and simply provided to the experts for signatures. The AAO reversed the decision of USCIS stating, regardless of the letters which provided little weight, that USCIS completely ignored the citation history and because whether the Petitioner performed the research as a student or after the Petitioner’s studies was irrelevant because the work performed was heavily influential in the field.
In a subsequent decision issued on December 23, 2011, the AAO ruled on the issues surrounding Outstanding Researchers. In this case, the Petitioner’s research was in the area of biostatistics. In support of the petition, the Petitioner submitted evidence that the Petitioner served as a peer review of articles for multiple journals as well as letters from experts that went into great detail about the Petitioner’s research. Moreover, the Petitioner submitted evidence that the Petitioner’s work was published in scholarly articles and that the work was cited more than 100 times in various international journals. Despite this extensive evidence, USCIS denied the petition stating that the Petitioner had not proven the Petitioner’s prominence in the field. The AAO, without discussion of USCIS’s reasoning for the denial, outright reversed the decision and approved the petition.
As a result of cases like these the Citizenship and Immigration Services Ombudsman with the Department of Homeland Security recommended to USCIS on December 29, 2011, that USCIS modify their procedures with regards to National Interest Waivers and the adjudication of Outstanding Professors and Researcher petitions. The Ombudsman has recommended that USCIS conduct formal rulemaking to clarify the regulatory standard to help eliminate the subjective issues that have arisen. The Ombudsman has also recommended that USCIS provide additional training and guidance on the proper application of the standards in adjudicating these types of requests. It is hoped that some long-overdue formal guidance on these issues will eliminate the delays resulting from unnecessary appeals of decisions resulting from the use of improper standards.
Ken Gauvey is an associate at Offit Kurman and part of Offit Kurman’s Immigration Group. If you have any questions regarding the content of this article, or any other immigration issue, please contact Ken at 443.738.1559 or kgauvey@offitkurman.com.