Can I still apply for EB-2 National Interest Waiver if I have a minimal citation record and no scientific or scholarly articles - Key Strategies for Petition Approval

This is a frequently occurring question we at Chen Immigration Law Associates get from potential clients planning to apply for first- and second-preference employment-based visas. The answer is “YES.”

There are many foreign nationals who apply lacking the above credentials, and many foreign nationals who are approved in the process. We at Chen Immigration Law Associates always carefully discuss with clients regarding the best strategies to strengthen and build up their cases.

Below are key strategies outlined and separated into the different visa preference options we at Chen Immigration Law Associates have successfully utilized to help clients have EB-1 (Aliens with Extraordinary Ability ; Outstanding Researchers or Professors) and EB-2 NIW (National Interest Waiver) approvals. Therefore, prior to planning an optimal strategy for petition approval, we help our clients decide under which visa preference they will qualify and apply. After deciding which category is most appropriate for a client’s case, we at Chen Immigration Law Associates discuss with clients to decide which criteria to claim (as discussed below), and in addition to strategies corresponding to these criteria, we have provided useful strategies that will dramatically improve our clients’ potential for petition approval.

Nonetheless, regardless of the visa category, one of the most important aspects of any petition is the specific field of endeavor classification. This is the very first we help our clients determine before deciding on a classification or additional strategies. For example, under any classification, arguing that one has ascended to the top of the field of engineering is much harder to claim than arguing that one has risen to the top of the field of civil engineering and flood policy analysis. Therefore, it is critical to narrow the scope of the field of endeavor before starting any petition package. Likewise, it is always wise to include the specialty within the field in the title of the field of endeavor specified. This eliminates any questions the immigration officer might have involving specific field classification, and it further aids in distinguishing one’s expertise from others in the overarching field of endeavor.

Moreover, by narrowing the field of endeavor down to a highly specific scope, one may still use general statistics from the overall field (i.e. relatively low citation climate statistics), but this also serves to assist in the immigration officer’s understanding of the applicant’s work under the national interest and within the general field of endeavor. In other words, if one claims their field of endeavor is molecular genetics, and continues with a detailed technical discussion, the immigration officer might not give proper weight to the contributions due to a complete misinterpretation or a mere poor understanding of the work’s fit within the national scope of the health sciences industry. And finally, when a highly specific field is used, one is able to use language like “the hybrid field of…” or “the highly-specialized field of…,” which provides additional support to the notion of one’s vitality or importance in the field. This strategy has aided substantially in the approval of petitions of clients at Chen Immigration Law Associates.

Moving forward, specific discussions related to criteria claims corresponding to each category of visa classification are provided to highlight potential criterion selection strategies.

EB-1(A) Visa – “Alien of Extraordinary Ability”

Under this standard of law, one must meet at least three out of ten regulatory criteria. The criteria are listed below and analyzed for proper understanding.

(1) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; Under this criterion, one can use prizes or awards from their fields. The only important aspect to note is that one should have appropriate documentation supporting the award’s lesser national or international acclaim. For instance, if one wants to claim this criterion, an award certificate is needed, along with an award letter to explain the significance, criteria, and details of the award’s reception. This criterion does not exclude those without scholarly publications or citations.

(2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; The membership criterion is a peculiar criterion, and one that is rarely sought due to the high standard of law with which it is judged. Unless one has attained a top tier membership in their field organization, one which requires “outstanding contributions” for membership, it is difficult to argue this criterion. Nonetheless, this criterion does not exclude those without scholarly publications or citations.

(3) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; This criterion is relatively difficult to meet, but is highly applicable to those without scientific or scholarly publications and no citations. (See [INSERT HYPERLINK FROM MAJOR MEDIA ARTICLE])

(4) Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought; This criterion is flexible for those with minimal to no citations and no scholarly articles, but primarily requires someone to either have served on a judicial panel or editorial board in the field of endeavor – a feat that is rarely accomplished without original authorship of articles or books.

(5) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; This criterion is also highly applicable to those with minimal to no citations and no scholarly articles. However, it must be noted that these contributions to the field must be of “major significance.”

(6) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media; This criterion inherently excludes those who have not authored scholarly publications in the field.

(7) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; This criterion is highly applicable to those with no citations or scholarly articles. However, one must play a critical role throughout the entire organization, which is typically hard to prove unless one is an upper-level executive or has made outstanding contributions to the organization at-large. In addition, the organization must be highly-acclaimed itself, or else the argument to meet this is groundless.

(8) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or This criterion is both applicable and easy to claim, assuming that the foreign national can demonstrate that they receive an exceptionally high salary. A free and useful website to assess whether one meets this criterion is Salary.com, which provides a user-friendly search tool to discover the average and percentile rankings of any professional occupation.

EB-1(B) Visa – “Outstanding Professor or Researcher”

Under this standard of law, one must meet at least two out of six regulatory criteria. The criteria are listed below and analyzed for proper understanding. In addition, one must be sponsored by their employer. The sponsor can be a university or a private company with a proven academic track record and permanent ability to pay and must employ at least three full-time researchers. As such, the standard of law is lower, but still harder to attain approval without scientific or scholarly publications or citations from researchers in the field.

(1) Evidence of receipt of major prizes or awards for outstanding achievement Under this criterion, one can use prizes or awards from their fields. The only important aspect to note is that one should have appropriate documentation supporting that the award’s reception is for outstanding. For instance, if one wants to claim this criterion, an award certificate is needed, along with an award letter to explain the significance, criteria, and details of the award’s reception. This criterion does not exclude those without scholarly publications or citations.

(2) Evidence of membership in associations that require their members to demonstrate outstanding achievement The membership criterion is a peculiar criterion, and one that is rarely sought due to the high standard of law with which it is judged. Unless one has attained a top tier membership in their field organization, one which requires “outstanding contributions” for membership, it is difficult to argue this criterion. Nonetheless, this criterion does not exclude those without scholarly publications or citations.

(3) Evidence of published material in professional publications written by others about the alien’s work in the academic field This criterion is relatively difficult to meet, but is highly applicable to those without scientific or scholarly publications and no citations. (See [INSERT HYPERLINK FROM MAJOR MEDIA ARTICLE])

(4) Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field This criterion is flexible for those with minimal to no citations and no scholarly articles, but primarily requires someone to either have served on a judicial panel or editorial board in the field of endeavor – a feat that is rarely accomplished without original authorship of articles or books.

(5) Evidence of original scientific or scholarly research contributions in the field This criterion can be met without scholarly articles or citations, yet there must be at least some evidence of contributions through one’s professional work in a field. (6) Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field This criterion inherently excludes those without internationally-circulated scholarly publications.

EB-2 Visa with a Request for a National Interest Waiver – “Advanced Degree Alien or Exceptional Ability”

To qualify for EB-2, one must either have an advanced degree or exceptional ability. Under this standard of law, to prove that one has exceptional ability, he/she must meet at least three out of seven regulatory criteria. These criteria are much easier to meet than EB-1 criteria, especially for applicants who are not a researcher or scientist, or have no scientific or scholarly publications and minimal citations. The criteria are listed below and analyzed for proper understanding. Although, in addition to these criterion, one must also qualify for a National Interest Waiver, which waives the company’s labor certification requirement, and to qualify, one must show that they work in a field of substantial intrinsic merit, their work is national in scope, and that the loss of their services would be adverse to the national interest.

(1) Official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning 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 the profession or certification for the alien’s profession or occupation

(4) Evidence that the alien has commanded a salary or other remuneration for services that demonstrates your exceptional ability This criterion is both applicable and easy to claim, assuming that the foreign national can demonstrate that they receive an exceptionally high salary. A free and useful website to assess whether one meets this criterion is Salary.com, which provides a user-friendly search tool to discover the average and percentile rankings of any professional occupation.

(5) Membership in a professional association(s) This membership criterion is not like the criterions in EB-1 classifications. All that is required is entry level membership available to those who pay membership dues and comply with membership by-laws.

(6) Recognition for the alien’s achievements and significant contributions to the industry or field by the alien’s peers, government entities, professional or business organizations This criterion is highly applicable to those without citations or scholarly articles, however reference letters will need to be submitted with the petition to affirm such.

(7) Other comparable evidence of eligibility is also acceptable.

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Therefore, we at Chen Immigration Law Associates are of the opinion that there are several criteria that can be claimed besides the ones that specifically require scholarly contributions via articles or citations. These are the criteria to focus on when petitioning without scientific or scholarly publications or citations. We at Chen Immigration Law Associates always drastically improve our clients’ chances of petition approval when targeting criteria where evidence is extensively available, and is directly pertinent to their professional work in the field of endeavor.

Moreover, in addition to narrowing one’s field and selecting appropriate criterion under the classification sought, there are other key strategies to attain visa approval. The first and most persuasive involves evidence of the foreign national’s entrepreneurial assets in the scope of the national interest. If the foreign national has started a company within the United States, and can show proof of employment data or fiscal contributions to the national economy, this provides critical support to the petition. For instance, if a financier or an engineer has started a consulting company, and they can show proof of contributions through this outlet – whether through employing U.S. citizens or through profitability – immigration officers will look highly upon such evidence and it will serve to distinguish the foreign national from others in the field, while also demonstrating their acclaim and rise to the top of the field. This is another underused strategy, and the USCIS has displayed their commendation of entrepreneurial duties through past petition approval and special clarification memos for entrepreneurs seeking a National Interest Waiver. We at Chen Immigration Law Associates have helped clients with similar background to have an NIW approval.

The last and highly applicable key strategy we at Chen Immigration Law Associates have successfully used for those without scientific or scholarly publications or citations involves professional contributions by the foreign national throughout the nation. These contributions can include anything from field reports and studies to book publications to consulting work for national organizations. The only thing to keep in mind and we at Chen Immigration Law Associates always deal with carefully is that with any petition or argument within, one must have the appropriate evidence to support statements. In other words, if one claims to have a report that has been expansively downloaded or consulting work that has been implemented, there must be documentary evidence submitted with the petition to support these claims (i.e. testimonial letters, copies of the reports and the according statistics, etc.). Herein, the Administrative Appeals Office (AAO) has provided language supporting the approval through such evidence. The AAO has stated: “The record demonstrates that the petitioner’s models have been applied in Maryland, Pennsylvania, Delaware and two separate projects in California. We are satisfied that the successful use of these models on projects in several parts of the United States, including on projects that previously defied solution despite a concerted effort and on a project that has garnered national attention, demonstrates the influence of the petitioner’s work.” Therefore, while the petitioner has no evidence of citations or publications, the demonstration of the implementation of the petitioner’s original models serves as substantiating evidence to enable petition approval. These models or general implementations can be derived from one’s work for their employer, yet the supporting materials in the petition package (i.e reference letters, reports, models, etc.) must prove that the foreign national is the lead contributor to the implemented work, and the work is not purely a result of the obligations to their employer.

Overall, despite some of our clients’ hesitation or doubts associated with having no scientific or scholarly publications, petition approval is feasible through an optimal utilization of the key strategies outlined above. However, it is always wise to consult an attorney before deciding which strategies to use as all cases are different, and may require slight modifications to the aforementioned strategies. If you wish to apply for NIW or EB-1 immigrant visa, please contact us at Chen Immigration Law Associates.