Judge of the Work of Others: What Evidence is needed?

For the National Interest Waiver, the Extraordinary Ability and the Outstanding Researcher applications, evidence that you have judged the work of others in your field or a related imagesfield can be extremely helpful.  However, the level of helpfulness of this evidence depends greatly on the type of judging and the kind of evidence submitted to USCIS.

First, in terms of the type of judging:  What USCIS is looking for is that you judged the work of other scientists.  Not Master’s or undergraduate students, not Ph.D. students, but scientists.  And then, even if you have reviewed the work of scientists, there are still two levels of evidence:  reviews of just postdocs, and reviews of postdocs and others researchers (or just other researchers).  If you have just reviewed postdoc work, while it will help, it will not help as uch as if you actually reviewed work of others at a higher level.  The reason for this is that USCIS looks at just post-doc reviewing as being a lower level than reviewing the work of other researchers.  Primarily this is because a Postdoc is considered to still be in training.  Also, Postdocs are at the beginning of their career, so if they are the only ones eligible, you are only judging those people at the beginning of their career and not those in advanced states of their careers.  Whether this view is warranted or not, it is the view of USCIS, so it is important to keep it in mind.  It is certainly possible to provide evidence to USCIS that, even though you were just judging the work of postdocs it was still extremely prestigious position in the field, but the burden of proof is on you to show this.

Assuming you now have your evidence of reviewing the work of other scientists, the next question is what kinds of evidence will be most helpful to USCIS.  There are two kinds of evidence that you can provide USCIS:  evidence of WHAT you did and evidence of the IMPORTANCE of what you did.  It is important to emphasis that BOTH types are needed for this evidence to be really useful for these cases.  The first type of evidence, proof that you actually conducted the judging, proves that you actually performed the act, but it does not show USCIS why it should regard this evidence as helping to show that you have made substantial contributions to the field (National Interest Waiver) or that you have received renown in the field (Extraordinary Ability andOutstanding Researcher).  In order to do that you need evidence as to the criteria that was used to select you for that position (evidence of the importance of what you have done).  The letter needs to explain the criteria in a way that shows USCIS that you were selected because of your renown, because of the importance of your work to the field, etc.  Without this second type of evidence, there is no proof that USCIS can use to show it what the importance of your judging  is, and, therefore, this evidence will not help your case get approved nearly as much as it would have had you provided documentation as to the importance of the work.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

The National Interest Waiver – Within the Reach of Many

The National Interest Waiver application is a self-sponsored application that is a good fit for many, many researchers and others looking to get permanent residence inth
the US. While many people feel that they need to show they are working for our government or something similar in order to show that their work i
s in the National Interest, this is actually not the case. The National Interest Waiver, while not easy to get approved, is much less restrictive than the E
xtraordinary Ability application and many people may be surprised that once they review the standard, that they can in fact qualify for this green card category.

So what are the actual qualifications for this application and how do you show your work is in the national interest? Unfortunately, this is a case in which both Congress and USCIS did not issue any guidance as to what the standard should be, so it was left to the courts. Specifically, the Administrative Appeals Office (AAO), in a precedent case (Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT)) did explain what is needed to show that your work is in the national interest. After the AAO issued this decision, USCIS formally adopted the decision as their standard.

The NYSDOT case laid out a three part test to determine if your work is in the national interest: 1) you must be seeking work in an area that has substantial intrinsic merit; 2) you must demonstrate that the proposed benefit to be provided by your work will be national in scope; and, 3) you must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making your position available to US Workers.
While the above can seem daunting in theory, it is not quite so daunting in practice. What it comes down to is showing you are, and will be, working in an important area and that you have already made a significant impact on your field. What type of documentation can show this?

If you are a scientist you can show this through publishing and presenting your work, citation history, peer reviewing, being accepted for oral presentation or invited to talk, having a paper highlighted at a journal website or elsewhere, having press about your findings. Please note, the above is a list of documents that CAN be used to show eligibility, and it is not a list of ALL documents that are needed, as you can be approved with less than all the above documents.
In general, while this is similar to the same type of documentation that is used for the Extraordinary Ability application, a key difference is that the NIW is a less restrictive standard than the EA. For instance, the Administrative Appeals Office, in looking at EA cases has indicated that perhaps 200 or more citations would be considered “a good number”. For the NIW application much less citations are needed. Many cases we have seen there are only 40-70 citations overall. Instead of having to show you are one of the few at the top of your field, the extent of your impact and influence on your area is key. This also me
ans that you do not need to be the first named author on your papers as it is the impact, not your renown, that is the key for the NIW.

For areas other than the sciences, such as foreign relations, health policy, etc, while the type of documentation can be much the same as above – publications, press, etc, you also have the opportunity to look at your role within projects, programs, or other initiatives. It can also be much more letter focused with letters from government officials or NGOs about the use and implementation of your work, etc. It all depends on whether your work is more academic related or applied in the field.

In essence, US interests are broad in nature, and thus, depending upon the extent of your standing within a specific area, you may very well be a good candidate for this type of visa application.

Please remember, always get your legal advice from an attorney and not a blog. Call and talk to an attorney to get the specifics of this status and your ability to qualify.

Are all Recommendation Letters Created Equal?

writing_a_letter-300x199One of the most frequent questions we get from our clients is about the Letters of Recommendations needed for the self-sponsored applications (we actually call them Expert Review or Expert Opinion Letters). People want to know who the best referees are, what the letters need to say, etc. For the most part, people believe that these letters are a very important part, if not the most important part of the entire application.

While the letters are important, what is more important is that you have “objective”, independent evidence as to the importance and impact of your work AND, for the Extraordinary Ability application, your renown. By “objective” generally USCIS means documentation not produced solely for the green card application, but that exists already. A good example of this is a news article published online, or the selection of an article you published as an “article of the week”. Such evidence exists separate from the green card application itself. This is the type of evidence that makes the difference between an application that is approved, and one that is not. Most Expert Review Letters come from your current boss, or a former boss, or a postdoc advisor, or a collaborator, etc. These type of letters, while nice, and helpful in terms of showing the role you played in your work, are not considered “objective” as they come from those with an interest in you and your work. These type of letters simply confirm the “independent” evidence you submitted, but cannot make your case. Expert Review Letters from those who are independent of you, on the other hand, CAN be “objective” evidence and CAN be persuasive to an Immigration officer when they review your case.

Letters that come from others in your field who do not know you personally, maybe have never even met you, but they do know your work (through citations, through presentations, etc.) AND they have used your work to help with their own work (maybe they have utilized your research in their own work, or applied your findings in their own projects) are the type of letters that USCIS is looking for. A letter from such a person IS “objective” evidence as to the importance and impact of your work AND evidence as to your renown in the field. Especially for the EB-1A Extraordinary Ability application, this is the type of letter that you should be shooting for getting.

To summarize:

  1. The most important evidence for a self-sponsored green card application is “objective evidence”
    2. Most Expert Review Letters are NOT “objective” evidence
    3. An exception to this rule are those Expert Review Letters that are written by “independent” people in your field who testify as to the importance and impact of your work AND how they have used your work in their own work

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

July Visa Bulletin Released: India 2nd Preference may Progress In the Coming Months

The Department of State recently released the July visa bulletin. While forward movement for the coming month was small or non-existent (1st preference remains current for all countries, 2nd preference is current for all but India (Sept. 1, 2004) and China (August 8, 2008), 3rd preference is at January 1, 2009 for all countries except India (January 22, 2003) and the Philippines (October 1, 2006)) the bigger news was the projected movement in the coming months. According to the DOS, China 2nd preference will move forward about 2 months, nothing major but good movement forward. However, for India, the DOS states as follows:

At this time it appears that the availability of “otherwise unused” Employment Second
preference numbers will allow for movement of this cut-off date in August and/or September. It is expected that such movement will generate heavy new applicant demand, primarily by those who are upgrading their status from the Employment Third preference category. A sustained level of heavy demand could impact the cut-off date at some point during fiscal year 2014.

Because other countries have not used up all their visas, they will start moving India forward, probably a good bit, but their prediction is that this will just exacerbate demand even more because the 3rd preference category is even more backlogged for India. as the new bulletins are published, I will post the new dates right here on this blog.