http://boards.immigrationportal.com/showthread.php?t=148800
4th November 2004, 11:29 AM
compass
Registered User Join Date: Oct 2004
Posts: 17
When I wanted to submit my I-140, I of course asked my lawyer what is the best way, and he told me it is employment-based OR and I don't qualify for E1 and NIW is ok but less chance. Since I was under impression that my company may not last long, I decided to go for NIW.
Yes, my info looks good... but... out from many papers most are published in my home country, the journals never read and cited ... I had only 5-6 papers in international journals at that time, with me as 1st author. I did a citation search to respond to my RFE and I thin I found about 70 or so citations, but all to maybe 3 of my papers only, others are not cited at all…
It turned out I had 14 rec. letters (I thought it was less..), but again, my lawyer told they are most from the people I worked with earlier, and this is not valued much…
In my company I was not supposed to publish but I got several patents…but they all were provisional at the time I filed I-140, so again, not of much value..
And I never was a ‘leader of group of people’ and never ‘commanded high salary’…
So it is really important HOW you present your info, whatever it is…
My REF and denial were just saying there is not enough proof that my work is of so much national interest that I need not file a LC-based case..
I am giving some details of my lawyer’s response to the denial below:
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The record contains 14 letters from experts in academia and industry, all attesting to Dr. XXX’s exceptional expertise in her field, explaining the national interest nature of her work, and supporting the waiver of a job offer and approval of the national interest I-140 petition.
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The Denial attempts to discount the value of the international research fellowships Dr. XXX received as being merely for collaborative research. While it is certainly true that such research by its nature is collaborative, Dr. XXX was the principal investigator on these projects and the key to their success. In addition, she received the fellowship awards on the basis of an article she published in a top journal in the field concerning her development of a novel chemical assay (See the letter from Professor YYY submitted with the original petition.)
The Denial also discounts Dr. XXXs work as a reviewer judging the work of others for top journals as merely being part of a collaborative process. Peer-reviewed publication is also by nature a collaborative process.
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Dr. XXX has served as a reviewer for AAA, one of the top journals in her field. (See letter from Dr. ZZZ submitted with the original petition, and list of journal rankings submitted as Exhibit K with the response to your Request for Evidence.)
Regarding Dr.XXX’s filing of patents, the Denial states that filings resulting from her “co-authorship of a research project,” cannot be accepted as evidence of the originality of her research.
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However, Dr. XXX is not a mere co-author of a collaborative research project, but rather the first author and the primary originator of research which served as the basis for her employer’s technology …
The Service also discredits the 14 letters of attestation provided in support of Dr. XXXs petition by high-ranking experts in the field. The reason given is that the writers’ knowledge of the Dr. XXX’s work appears to derive from their collaboration with her on research or with institutions where she has worked, “…rather than the petitioner’s general acclaim.” We submit that a letter attesting to the petitioner’s outstanding ability should not be discounted merely because the writer has collaborated with the petitioner. Two of writers, Professor Y1 and Professor Y2, clearly note that they first came to know of Dr. XXX’s research contributions through her publications or presentations at international conferences.
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One of the writers, Nobel Laureate NNN, based his opinion on a presentation Dr. XXX gave concerning her work in MMM….
The Denial further states that the 14 letters of attestation are not evidence sufficient to support a national interest waiver because, if the high opinions expressed are not “widely shared throughout the field, then the petitioner has not achieved widespread acclaim.” We submit that the standard in a national interest waiver case for determining whether the petitioner has had an impact on the field is not “widespread recognition”, but rather the standard elaborated in the leading precedent decision from the Administration Appeals Office (AAO), In the Matter of New York State Dept. of Transportation, I.D. 3633 (Acting Assoc. Comm. for Programs, August 7, 1998). The decision states:
“…the national interest waiver hinges on prospective national benefit…. The inclusion of the term ‘prospective’ is used here to require future contributions by alien rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative.”
Nowhere does the decision require the establishment of “achievements that are widely shared and recognized throughout the field,” as does the Service in its Denial. We submit that the proper standard is articulated by the AAO in footnote 6 of its decision:
"The alien, however, must have established in some capacity, the ability to serve the national interest to a substantially greater degree than the majority of his colleagues.... The Service here does not seek a quantified threshold of experience or education, but rather a past history of demonstrable achievement with some degree of influence on the field as a whole."
The evidence provided establishes that Dr. XXX meets this standard …
. The record shows that she has made significant original scholarly research contributions in developing breakthrough assay technologies, that she has numerous publications in top journals in the field, that she has been invited to judge of the work of others by top journals, and that she is the primary author on several U.S. patent filings for important new technology. On this basis we submit that she “significantly exceeds the average or mean level of impact” in her field even if the Service doesn’t find that this evidence establishes “widespread acclaim” such as might justifiably be required of a petitioner in an Extraordinary Ability case.
Lastly, the Denial states that Dr. XXX request for a national interest waiver “appears to be primarily based on the general argument, that the country needs this type of work conducted and that the self-petitioner’s work will be successful.” In fact, the petition is based on evidence that Dr. XXX clearly and substantially exceeds the median for researchers in her field and that her work will directly and immediately benefit the U.S. national interest. Certainly the Service should not undermine the integrity of the labor certification process by granting an exemption to every alien who can demonstrate some remote potential benefit to the national interest. However neither should such exemptions be limited only to aliens with “widespread acclaim.”
In times such as these when the threat of chemical or biological attack by terrorist groups is greatly increased, the U.S. does indeed need Dr.XXX’s expertise
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compass
I-140 ND 04/2003, RFE 10/2003, denied 1/2004 CSC
appeal 02/2003, approved 07/2003 AAO
I-140 AD 07/2003 CSC
I-485 ND 09/28/2003 VSC
1FP 10/25/2004 (completed)