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.
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