The Chicago law firm of Zneimer & Zneimer is tracking decisions under the new NIW framework and is providing a summary of decisions applying Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016)
In a recent appeal from a national interest waiver denial issued by the Nebraska Service Center, the AAO determined that a physician and cardiology researcher did not meet the second and third prong of the National Interest Waiver framework that the AAO announced in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016). We outlined in more detail the framework in our earlier blog. The framework imposes three prongs on the petitioner:
- That the proposed endeavor has both substantial merit and national importance;
- That the foreign national is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
Petitioner’s Claim: The alien was pursuing postgraduate medical training as a general cardiology fellow in a one year fellowship. He claimed that his clinical work would have an effect “on the health care system of the United States as a whole” and that his “medical research is having a widespread impact on the quality of medical care across the United States.” He treated and did research on a “wide range of heart conditions, including systolic heart failure.” Proposed research endeavor was to understand unique heart conditions and identify proper methods of diagnosis and treatment.
Evidence presented: The alien physician presented his CV, medical credentials, emails inviting him to publish and present his work, documentation of his published work, conference presentations, professional memberships, academic credentials, internal awards, and letters from physicians and professors of medicine discussing his research concerning heart conditions and its potential benefit to our nation’s healthcare system. The petitioner also submitted documents that demonstrated that benefit of his cardiology research had broader implications, as the results from his work were disseminated to others in the field through medical journals and conferences.
- Proposed endeavor merit and national importance (Yes, meets this prong): The AAO found that both the clinical work and the research have substantial merit. However, the petitioner’s care and treatment of patients the clinical cardiology work was limited to the patients he serves, and therefore, the clinical work did not meet the “national importance” element of the first prong of the Dhanasar. On the other hand, the cardiology research aspect of the endeavor was of a national importance.
- Whether the alien is well positioned (No, doesn’t not meet this prong): The AAO decided that the petitioner did not demonstrate a “record of success or progress in his field, or a degree of interest in his work from relevant parties, that rises to the level of rendering him well positioned to advance his proposed research endeavor of understanding unique heart conditions and identifying proper methods of diagnosis and treatment.” The AAO cited some of the letters from medical professors discussing the petitioner’s research, that included qualifications that the research was “promising.” One of the letters stated that the petitioner “was able to demonstrate, by coronary angiography, for the first time in the medical literature that coronary flow impairment can be secondary to not only atherosclerosis, but also compression from the outside such as pericardial effusion.” Another letter noted that the research provided his peers “with a better understanding of effusive constrictive pericarditis so that they could put this valuable knowledge to practice in their own institutions across the United States and around the world.” Another professor opined that the petitioner performed “a very interesting study on cardiac catheterization and coronary angiography that addresses the differences between performing these procedures by assessing the heart via the femoral artery . . . and the radial artery . . . .” Another one discussed two reports on petitioner’s cases, one involved an endomyocardial biopsy with a coronary-cameral fistula and a second involving left main coronary artery spasm. These reports were not published at the time of the petitioner, and the AAO did not consider them. The AAO found that the petitioner’s research had not been cited frequently by independent cardiologists and had not otherwise served as an impetus for progress in the field, affected clinical practice, or generated substantial positive discourse in the broader medical community. The AAO determined that the alien petitioner was not well positioned to advance the proposed endeavor.
- Balancing (No, doesn’t meet this prong): The petitioner did not meet the third prong either. On balance, he had not shown that his cardiology research stirred an urgent national interest, nor has he demonstrated that he offered contributions of such value that, over all, they would benefit the nation even if other qualified U.S. workers were available. The AAO determined that the foreign national was not eligible for a national interest waiver.
Points to take away.
- A petitioner can demonstrate the national importance through evidence that the research was distributed through publications, conferences, and others.
- The petition must be approvable when filed and the AAO cannot consider evidence that post-dates the petition file date.
- Avoid speculative language in letters, for example “promising,” “potential”. The letters should describe concrete benefits that already bring positive changes in the field;
- Show urgent need by others in the alien’s endeavor through grants, interests, speaking engagements, citations to the research, adoption of methods, etc. It is not enough to have research, as research generally adds some information to the pool of knowledge if it were to be accepted for publication, but neither the existence of research nor its publication is enough. There must be evidence of some interest in the research from the field.
If you would like to explore your immigration options contact an immigration attorney. Our office is well versed in filing National Interest Waivers and will be following decisions under the new test.