Reprinted with permission from Inside Immigration (Apr. 2013), copyright by the American Immigration Lawyers Association.

Early Evaluation of Potential IV Eligibility: CV’s Publications, and Other Evidence

 

For researchers and scientists, we consider:

• Extraordinary Ability (can self-petition)*
• Outstanding Researcher (requires employer sponsorship)
• National Interest Waiver (can self-petition)
• Schedule A, Group II (requires employer sponsorship)

*This category requires a much higher standard, requiring the alien to show that he/she is one of that small percentage who has risen to the very top of his/her field of endeavor. This is often very difficult for a young scientist to demonstrate.

Outstanding Researcher Category

In order to determine whether a researcher qualifies under the Outstanding Researcher category, we must first determine whether the foreign national is:

1. Outstanding in an academic field
   • Defined as: A body of specialized knowledge offered for study at an accredited U.S. university or institution of higher education.
2. Has at least 3 years of experience in teaching and/or research in the academic field
   • Experience in teaching or research while working on an advanced degree will only be acceptable if the alien has acquired the degree, and if the teaching duties were such that he/she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. We provide evidence in form of letter(s) form current and former employer(s).
3. Has an offer of employment from a prospective U.S. employer from either:
4. A US university or institution of higher learning offering the alien a tenured or tenure-track teaching position or a permanent research position in the alien’s academic field; or
5. A department, division, or institute of a private employer offering the alien a permanent research position in the alien’s academic field. The department, division, or institute must demonstrate that it employs at least three persons full-time in research positions and has achieved documented accomplishments in the academic field
   • Evidence can include:
     • A letter from the petitioner confirming employment of at least 3 full-time researchers
     • For documented accomplishments, we provide a list of patents, quarterly reports, financial statements, articles featuring the company, and/or awards, etc.

National Interest Waiver

The National Interest Waiver (“NIW”) requires that the alien will serve the national interest. The petition will most likely focus on the needs of the U.S. and the foreign national’s ability to satisfy these needs rather the focusing primarily on the alien’s qualifications.

Since “national interest” is not defined, USCIS relies on an AAO precedent decision,  Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998) (“NYSDOT”) in setting forth a three-prong test for evaluating requests for a national interest waiver which is outlined below:

1. Work has substantial intrinsic merit. Evidence can include:
   • We usually discuss the importance of the alien’s work in the company support letter.
   • Articles or other published media discussing the alien and/or the alien’s company’s work and its importance
   • Letters from experts in the field attesting to your work and its importance
2. Work is national in scope
   • Typically address this requirement with the substantial intrinsic merit requirement
3. In the national interest to waive the labor certification process

Premium Processing is not available for NIW. However, we were able to get a NIW approved well under the average processing time. The average processing time was about 6 months and our petition was approved in approximately 4 months.

Schedule A, Group II

The Schedule A, Group II petition must contain the following:

1. Documentary evidence testifying to the widespread acclaim and international recognition accorded the alien by recognized experts in their field; and
2. Documentation showing that the alien’s work in that field during the past year did, and the alien’s intended work in the United States will, require exceptional ability.

General CV and evidence review for Outstanding Researcher category

When reviewing the CV, we are looking for evidence to meet at least 2 criteria listed at 8 CFR 204.5(i)(3)(i). Pay attention to plurals. USCIS will not accept a criterion if the alien provides singular evidence when it requires multiple achievements – one award, one membership in an association. AAO decisions affirm this reading of the regulations.

1. Receipt of major prizes or awards for outstanding achievement
   • No student awards
   • Receipt of awards – not receipt of nominations

2. Membership in associations that requires members to demonstrate outstanding achievement
   • To qualify under this category, you must show that the membership is selective

3. Publications about the alien’s work
   • Copies of articles, acknowledgements, citations
   • Provide information about the publication

4. Evidence of participation as a judge of the work of others in the same or allied academic field
   • Was the alien invited to do the review, or, was the advisor asked?
   • Evidence can include invitation and thank you emails
   • Co-organizer for conferences and selection of speakers
   • Evidence of graduation of PhD students, and/or, selection of graduate students has been used in the past. However, recent RFE’s have stated this is part of a faculty job only.

5. Authorship of scholarly books or articles
   • Manuscripts in publication/submitted for publication?
     • If in press, list it
     • If submitted only, can list on CV but don’t highlight
   • Is the alien first author? What is the name listing convention for this area of research? PI first? Alphabetical? In order of amount of work done?
   • How many is enough?
     • Look at quality as well as quantity
   • Was it a Peer reviewed or referred journal?
   • Ranking? We prefer to talk about the journal’s ranking rather than impact factor. An officer is more likely to understand rankings. For example, “Nature is the number 1 journal out of 112 journals in the multidisciplinary category,” instead of “Nature has an impact factor of 42.351” and then go on to discuss what that number means. Can also use some indices particular to a research area such as the h-factor for physics.
   • National or international circulation?

6. Evidence of original scientific or scholarly research contributions in the field
   • We usually ask the researcher/scientist to provide a detailed description, explained to a layperson, his/her work/research and the significance of his/her contributions. He/she can include photos, graphs, etc. if easy to understand.
   • Other evidence include:
     • Number of citations – Google Scholar, Web of Knowledge
     • Patents – caution, use only patents that are being used in the area of research, in the marketplace, etc.
     • Conference presentations
     • Reference letters (see below)

General CV and evidence review for NIW and Schedule A, Group II category

The criteria are the same for NIW and Schedule A, Group II. For both petitions, the alien must meet at least 3 of the following:

1. Official academic record relating to  your area of exceptional ability
2. Letters documenting at least 10 years of full-time experience in your occupation
3. A license to practice your profession or certification for your profession or occupation
4. Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
   • Pay stubs, contract, W-2
5. Membership in a professional association(s)
   • Similar evidence as discussed above
6. Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
   • Similar evidence as discussed above
7. Other comparable evidence of eligibility

Client intake questions

1. What tools do you provide to an EB-1 client to prepare evidence for submission?
   • A one-page overview about the Outstanding Research category and examples of evidence to meet each criterion.
   • Drafting reference guide which provides an outline how the letter should be organized. We prefer to provide a reference guide rather than a sample letter to avoid all letters looking the same.
     • Is there a magic number? Depending on the strength of the case, we typically request 6-8 letters
     • General statements of influence or acclaim are not enough.
     • Include a mix of independent and non-independent reference letters.
     • Reference letters submitted as evidence of criteria such as awards, publications, etc. will not be accepted as “evidence” if the petitioner does not establish that primary and secondary evidence is not available. Make sure the letters do not contain identical language.
   • Sample letter confirming journal referee work
   • Request a print out of ISI citation index.