As many of our readers are aware, EB1 petitions are now adjudicated under the standards set forth by the Kazarian decision. Our office has received many inquiries from people who are concerned that this standard has been extended to National Interest Waiver (“NIW”) based petitions. Many fear that even though the Kazarian decision was specific to EB1 petitions, there may be some carry over in the way USCIS approaches its NIW cases. Analysis of our recent NIW cases demonstrates that there appears to be little change in the way the USCIS adjudicates NIW petitions. Below is an analysis of our recent NIW case approvals and a sampling of the strategies our office uses for different types of NIW cases.
From our recent cases, it is readily apparent that citations remain the crux of most NIW petitions based on the life sciences. Petitioners with a strong citation count consistently receive NIW approvals with a small chance of receiving an RFE from the USCIS. Knowing this, what type of evidence should petitioners submit to demonstrate the citation count? Many petitioners believe that you must gather all of the citing articles and highlight each part where the petitioner’s work is cited. Such thoroughness is not required and, in fact, should be discouraged since this method is very time consuming and can rapidly add unnecessary bulk to the case. Instead, it is better to print out the citation list for each of the petitioner’s articles, directly from a citation service such as ISI, Google Scholar, or Scopus. In fact, many RFE’s ask for these citation indices by name and thus they are a recognized by the USCIS as an acceptable method to prove the number of citations a petitioner has.
For petitioners who do not have a strong citation history or for those fields such as Electronic Engineering that do not have a rich culture of citations, our office uses several different strategies to make up for the citation shortfall. Using two recent NIW cases as examples:
The Petitioner held a Ph.D. in Computer Science and had less than 15 citations to his IEEE journal publications. Other than his journal publications, the Petitioner did not have any other awards, patents, or other recognition in the field. Our office asked the Petitioner for evidence of his conference presentations as well as the citations to those presentations and then successfully argued that unlike the biological sciences, in computer science related fields, citations to conference presentations were as prestigious as journal citations and both types should be given equal weight. The case was approved in 5 months without an RFE.
This Petitioner held a Ph.D. in Biostatistics and had less than 20 citations to his peer-reviewed publications. Similar to the Computer Scientist above, other than his publications, he did not have any major accolades or awards from his work. For this case, our office focused on the quality of the citations the Petitioner had. He had 10 citations from a few of the most important journals in the bioscience field and we demonstrated the high average impact factor of the journals that cited his work. We used these citations to demonstrate that while his overall citation count was relatively low, the citations were of high quality and even received special recognition from two of the article authors with a notation that the petitioner’s article was “of particular interest”. The Petitioner received his approval 11 months after submission which included an RFE response.
Overall, despite the new EB1 adjudication standard, we have seen little change in the way the USCIS adjudicates NIW petitions. As our recent case approvals demonstrate, as long as petitioners use the correct strategy for their cases, NIW approvals are still forthcoming even in light of the new EB1 standard.
In our next article, we will explore new approaches and case strategies to successfully petition under the new EB1 Kazarian standard.
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