Alan Lee's Talk At Rutgers University On January 27, 2008 - Outstanding Professor or Researcher and National Interest Waiver Cases (Part 5 of 6). Published in Sing Tao Weekly on 3/16/08

By Alan Lee, Esq.

(This is the fifth of six parts of the talk given by Alan Lee, Esq., before the Rutgers University Chinese Students and Scholars Association on January 27, 2008. In this part, the article picks up with "EB-12 (Outstanding Professor or Researcher)" which is item 5 on the outline which was handed out to audience members before the talk and is available on our website at www.AlanLeeLaw.com. Here Mr. Lee discusses the role of discretion in deciding outstanding professor or researcher cases and national interest waiver cases. Mr. Lee goes through the history of the categories, basic eligibility rules, the present attitude of U.S.C.I.S. on these categories, and what he believes the agency is looking for. The talk has been edited to approve readability. In the next installment, Mr. Lee will answer questions posed to him by the audience.)

Outstanding professor or researcher -- What's an outstanding professor or researcher? It is whatever Immigration thinks it is finally. This is an area in which Immigration has a lot of discretion in figuring out whether they think someone is or is not outstanding. Qualifications for the job -- the job must be not temporary. If you are going to work for a university or college in a job which is term limited, and the institution never tells Immigration that it is anything but a term job, Immigration will not approve the outstanding professor or researcher case. They cannot under the rules. Of course, if a university or college says that the job has no ending date, or is indefinite in time, Immigration might take that. But they will generally not take a letter saying that this is a term appointment. If they see that it is a professor in a tenure track situation, however, they might take that type of letter from the university or college if it says that the appointment is renewable. But usually a university or college can provide a better letter than a term appointment paper for a tenure track type person.

Outstanding Professor or Researcher Job Experiences

Three years of experience -- A person must have three years of doing this type of work before you can submit the case. Immigration is a little loose on this point. They're willing to take the type of work that a person was doing during the time of studies so long as they consider that work outstanding. For example, if you're in a Ph.D. program, a graduate fellow or research assistant, and you've been doing a lot of writing, some of which has been published, Immigration might credit that period of time to your 3 years. Organization -- If it is a university or college, you don't have to worry about it. If your sponsor is a private company, then you might have to start looking because that organization must have at least three full-time researchers and documented achievements in the field. If your sponsor is a company like Schlumberger, the oil field people with a research division, great! But if you go off to a very small company, which may for example have started up five years ago and is doing some research, you have to see how many people are full-time researchers and what their track record is of achievement. Do they have newspaper or magazine clippings? Do they have awards? You might want to ask before you start doing an outstanding researcher type case.

Evidence to show the outstanding qualifications of the applicant

Immigration gives many choices from which two out of six confer basic eligibility.
1 Documentation of receipt of major prizes or awards for outstanding achievement in the academic field;
2 Documentation of membership in associations in the academic field which require outstanding achievement of their members;
3 Published materials in professional publications written by others about your work in the academic field, such materials including the title, date, and author of the material and any necessary translations;
4 Evidence of your participation either individually or on a panel as the judge of the work of others in the same or connected academic field;
5 Evidence of your original scientific or scholarly research contributions to the academic field;
6 Evidence of your authorship of scholarly books or articles in journals with international circulation in the academic field.

In the past, Immigration used to be easy on this type of case. Now they've gotten tougher. When this category first came out, I recall that even if we just had a person who had done some writings and only had one review of the work of another, that was good enough. These days, Immigration is fairly difficult and even in cases in which the applicant has 15-20 publications they're sending us back Requests for Further Evidence asking us to show further that the person is truly outstanding. It just seems that when anything first comes out with Immigration conferring a benefit, and Immigration doesn't know exactly what to do with that, their adjudications are much looser. But as time goes on, it seems that benefits shrink. And that is the way it is with outstanding professors and researchers. We still get cases and we get them approved, but I do warn you they are getting harder.

When do you file this type of case? Most of the people who are filing already work in the field. We get some postdocs, but if you talking about students doing outstanding professor or researcher cases, that may be pretty tough because usually a person who is still studying is not going to be that outstanding

National Interest Waiver (NIW)

What is NIW? It is whatever Immigration thinks it is. Again this is an area in which Immigration has much discretion in deciding whether the individual's immigration is in the national interest. Discretion means that if they decide you get it, you get it. If they decide you don't, you don't. Are you ever going to be able to sue successfully in federal court in an NIW case on the question of discretion? No, the federal court will throw you right out because the court will tell you that you cannot sue the U.S.C.I.S. on matters on which it has discretion. What are the qualifications for the category? You either have to have at least a master's degree or you must be exceptional. Exceptional ability in the sciences, arts or business means a degree of expertise significantly above that normally encountered in the sciences, arts, or business. Evidence to show that a person is exceptional consists of at least three of six categories of proof:
1 An official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
2 Evidence in the form of letters from current or former employers showing the you have at least 10 years of full-time experience in the occupation for which you are being sought;
3 A license to practice the profession or certification for a particular profession or occupation;
4 Evidence that you have commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
5 Evidence of membership in professional associations;
6 Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Immigration does add that if the above standards do not readily apply to your occupation, you can submit comparable evidence to establish your eligibility. However, even if you do have the master's degree or higher or prove that you are exceptional, the question to Immigration is always going to be whether your immigration is truly in the national interest. Adjudications by Immigration will usually concede that your work is in a field of national interest, and that you have an advanced degree or are exceptional according to the guidelines, but the major question is going to be on the subject of national interest, eg - "Can you prove to us that if we do not give you your national interest case, this will damage the national interest?" That seems to be the direction that they are at.

From the time that this category along with outstanding professor or researcher came into being with the Immigration Act of 1990 (to my recollection), this was initially (like the outstanding cases) an easy category -- I remember having artists approved, and I even did a couple of successful cases with people on Wall Street without large credentials-- but as time went on, this became an increasingly difficult category. And then Immigration came out with the New York State Transportation case in the late1990's which effectively asked the question of how making you seek a labor certification would damage the national interest. Another item that Immigration is now asking is for applicants to "Prove to us that you are so different from others in your field who are similarly situated that your contribution will be more than that of the other people." That's difficult in some cases. What are the mechanics of filing? You try to put together as much as you can - your entire portfolio - and ship it to Immigration. [ Mr. Lee here referred to the materials which he provided showing the places to file employment based visa petitions.] Everyone in this region is filing employment based cases at the Texas Service Center. If your workplace is generally west of the Mississippi, you'll be filing in Nebraska. I-140s to the Texas Service Center, P.O. Box 852135, Mesquite, Texas 75185-1804. If the filing is by FedEx, DHL, UPS or other private courier, send to 4141 North St. Augustine Road, Dallas, TX 75227. And if you're able to file concurrently with the I-485, file all papers to the same address if you're not filing to Nebraska.

When can you file an NIW case? Although Immigration would generally like to see cases from fully qualified professionals who are working in their fields, we have successfully filed cases where people were still in school. Sometimes the students' research projects are enough to qualify for national interest, and some students are even able to get nice recommendation letters from the federal government. This is a little bit different from outstanding professor or researcher in which you are probably better off if you're graduated and working in the field before making that type of application.

 


The author is a 26+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

This article 2008 Alan Lee, Esq.

 

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