Trends in Recent NIW decisions

We have successfully handled numerous NIW cases for foreign nationals in a wide range of fields, including in civil engineering, medicine, material sciences, software engineering, environmental engineering, and aerospace engineering. We have reviewed a lot of RFEs in NIW cases. In general, NIW is much more difficult to obtain. While the USCIS has changed directions in its adjudications, NIWs are still possible for individuals who play critical roles at their universities and companies, and have a demonstrable track record of achievements, showing that their contributions are much greater than their US citizen peers.

The Importance of Citations

When examining whether the petitioner satisfies the third prong of the three requirements, USCIS looks evidence showing the foreign national’s past track record in the field is strong and distinguished him from his peers. It helds that an impressive citation history could be used as evidence of his impact on the fields. We found evidence of citation is frequently requested in RFEs.

When judging the influence and impact that petitioner’s work has had, publication alone may serve as the evidence of originality, but it is difficult to argue that a published article is important of influential if there is little evidence that other researchers have relied on the petitioner’s findings. Numerous and frequent independent citations would provide firm evidence that other researchers have been influenced by the petitioner’s work. Their citation of the petitioner’s work demonstrates their familiarity with it.

Based on our experience, it seems that USCIS did not have specific standard about how many citations would be adequate to demonstrate a measurable impact in the field. In one approved NIW case, we did provide citations and reprint requests from other scientists in the field, including reprint requests from scientists of high reputations from prestigious research institutes in the world, to support our argument that the petitioner exceeded his peers due to his novel research contributions,. We submitted a few samples of papers that cited petitioner’s researches, and reprints requests. However, the exact number of citations to the petitioner’s work was not given, yet the USCIS found the petitioner has demonstrated his influence.

A List of Publications Alone Isn’t Enough

Every NIW case includes a list of research publications. However, the mere publication of a researcher’s findings is not sufficient to establish a substantial impact in the field. In cases of postdoctoral researchers, USCIS held that publications is an expected part of a postdoctoral appointment and therefore is insufficient to demonstrate the influence of the researcher’s work. To give an example, we refiled an NIW case for one petitioner with an impressive publication list, more than 100 papers in high-energy physics. The first NIW, filed by some other attorney was denied unfortunately. After reviewing the denial notice, we found the petitioner failed to establish that it is rare to have such a large number of publications in the field and that his findings have influenced the field in a measurable way. In another approved NIW case, the petitioner has six publications, including two in Chinese, and four presentations made at the international conferences.

To address the issue of impact in the field, we provided evidence to prove the journals that published the foreign national’s papers have a restrictive peer-review procedure, and emphasize the significance of petitioner’s contributions in the published papers. Besides testimonial letters from experts who know of the petitioner through his or her publications, anonymous peer-review comments of the petitioner’s manuscripts are also found convincing. This is especially helpful when the petitioner does to have an impressive publication list.

Patents Could Be Strong Evidence If Properly Presented

Like publications without citations, patents without evidence showing the impacts carry little weights too. For example, one electrical engineer in semiconductor laser is a co-inventor of six US patents and a co-inventor of three pending patents. In the RFE, the USCIS held that approval of patents is not rare in the United States.

Another example of an approved NIW petition. The foreign national is a postdoctoral researcher in nanomaterials. As a co-inventor of a patent granted by China Patent Office, the petitioner has made great contributions to this patented research. To demonstrate the economic benefits the patent has had, we provided ample evidence to prove this patent put forward an inexpensive, convenient and extremely reliable method to synthesize nanoscale sulfide, selenide, telluride and phosphide at room temperature. Those are important materials that have been used in a rich variety of commercial applications, such as semiconductor, holographic recording systems and electrical switching. As for the significant influence in the field, the petitioner provided evidence to prove this patent was also collected in the database of the European Patent Office, one of the world’s leading providers of technical information.

Extraordinary Ability Arguments are Occasionally Convincing

From reviewing the RFEs issued on NIW cases, we noticed the USCIS hold NIW petitioners to the “Extraordinary Ability” standards. In one case, the Service Center requested evidence of national/international awards, and publications about the petitioner, which would normally be associated with an extraordinary ability visa petition. In some RFEs, USCIS uses the exact languages of the EB1 Extraordinary Ability standards.

This is confusing because satisfaction of extraordinary ability standard is not required for an NIW case. Evidence that may not meet the extraordinary ability standard can still be influential in demonstrating the measurable impact of a petitioner’s research. However, as the VSC’s arguments demonstrate, satisfaction of the higher standards is a sure way of satisfying the third prong of the NYSDOT test.

In our approved NIW cases, to document the foreign national’s past demonstrable achievements in the fields, we do include publications, awards and research contributions of significance.

Successful NIW cases are not necessarily limited to those foreign nationals who have risen to the very top of their field. Presenting materials in support of the petition that frame the case in the most favorable light will definitely help the case. For example, it is important to present the foreign national’s field as narrowly as possible while maintaining credibility. For example, a computer scientist with expertise in biomedical informatics should not be compared with all other computer scientists, but rather with the relatively small group of professionals who have distinguished themselves in this subspecialty. The supporting documents should not refer to this foreign national as a computer scientist, but rather as a bio-informatics scientist. By narrowing the frame of reference, the foreign national will be compared to a much smaller set of U.S. peers.

Expert Testimonial Letters: Key Leading to the Success

As mentioned previously, the key to a successful NIW case would be to satisfy the third prong of the requirements. Different from EB1 Extraordinary Ability petition, which has ten specified criteria, the NIW case seems to leave a lot of room for petitioner to interpret what are deemed as compelling evidence to show the applicants are substantially better than their U.S. citizen peers. The most effective way to demonstrate measurable influence was to present an objective evaluation of the researcher’s work in the field. As noted above, citations are one form of objective evaluation. Another source would be strongly supportive testimonial letters. of influential evidence of impact is testimonials from independent experts at the highest level, ideally from officials of government agencies and highly reputable private companies and organizations in their fields.

Strong testimonial letters are key to a successful NIW case. A foreign national should obtain strong letters from both the foreign national’s “inner circle” and “outer circle” of peers. The foreign national’s inner circle includes mentors, collaborators. While these letters are given some weights, the USCIS also held letters from those the petitioner has directly worked with are possibly biased.

Independent expert opinion letters from outer circle carry substantial weights. USCIS held it is more persuasive if testimonials are from independent experts at the highest level, ideally from officials of government agencies and highly reputable private companies and organizations in their fields. They may know the petitioner primarily through their published research and presentations.

Whether the testimonial letters are from acquaintances, or from independent experts, the letters should clearly support the specific criterion claimed satisfied and avoid raising irrelevant questions. For instance, a letter from the petitioner’s postdoctoral advisor states the applicant has done substantial research under his supervision would significant undermine the assertion that applicant sustains international acclaim. A good testimonial letter should be specific about the petitioner’s contributions in the field, and stress the impact of the petitioner’s discoveries. More importantly, instead of discussing the potential benefits of the petitioner’s ongoing research to demonstrate the eligibility for a national interest waiver, the testimonial letter should emphasize that the petitioner’s findings have already had impact in the field.

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