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HIV Epidemiologist’s Work Insufficient for a National Interest Waiver

A foreign national epidemiologist petitioned USCIS for an immigrant petition, filing a petition herself, without an employer.  She argued that her work is important for the national interest of the U.S. and the USCIS should not require her to have a job offer.  USCIS disagreed and the epidemiologist appealed to the Administrative Appeals Office (“AAO”). The AAO dismissed the epidemiologist’s appeal, agreeing with USCIS’s decision.

One way a foreign national living in Chicago or elsewhere can become a permanent resident is through employment, if a U.S. employer petitions for the foreign national.  To sponsor a foreign worker for permanent residence, a U.S. employer must go through an expensive, complicated, and lengthy application process to the Department of Labor for a labor certification.  The Department of Labor must certify that the employer has tested the U.S. market and that there are no U.S. workers that are willing, able, qualified, and available to take this employer’s position.  Only then can an employer petition USCIS for an immigrant petition on behalf of a foreign worker.

The labor certification process is important to the national interest.  It ensures that a foreign national does not displace an available U.S. worker that is minimally qualified for the job.  In certain unique cases where a foreign national’s work is very important for the U.S., testing the U.S. market and seeking a labor certification may not be in the national interest.  In such cases, a foreign national can file his or her own petition and seek a waiver of the job offer requirement and the labor certification process.   We call this “a petition for a national interest waiver.”

The Administrative Appeals Office that reviews decisions of USCIS, has outlined an analytical framework for USCIS in Matter of Dhanasar, 26 I. & N. Dec. 884 (AAO 2016). USCIS applies this framework on a case by case basis to decide if it should waive the labor certification process for an alien worker as a matter of national interest.

The Chicago law firm of Zneimer & Zneimer is tracking decisions under the NIW framework and is providing a summary of decisions applying Matter of Dhanasar.  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. 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 an epidemiologist and a program officer in an HIV/STD prevention program focused on expanding HIV prevention.  The alien worked in data management, monitoring HIV testing grantees, and evaluating their effectiveness at providing preventive services.  The petitioner also tracked trends of HIV epidemic, helping her organization to direct efforts based on data.  The project involved securing additional funding to increase HIV prevention program’s capacity to expand intervention for at-risk population.  The foreign worker maintained that her work in providing ongoing analytic/epidemiologic support and technical expertise, participation in the design and implementation of the HIV prevention program, and securing funding are in the national interest.

Evidence presented: The alien presented four scientific articles that discussed the benefits of HIV prevention programs.  She also submitted her resume, and four reference letters, that discussed her education, experience, and project.  She also had two CDC funded HIV prevention grants and two technical reviews, a CDC HIV funding opportunity announcement, annual HIV epidemiological profile, and a chart from CDC related to HIV.

Decision.  The AAO decided that the work is insufficient to meet the national interest requirements.

  1. Proposed endeavor merit and national importance (Yes, meets this prong): The AAO found that the work meets this prong.  Specifically, the AAO decided that the HIV prevention program was actively disseminated in the public domain and presented at medical conferences, and therefore has national implication.  This information was sufficient to meet the first prong.
  2. Whether the alien is well positioned (No, does not meet this prong): The AAO found that the alien has not shown that “her epidemiology research relating to HIV prevention has been frequently cited by other public health professionals or otherwise served as an impetus for progress in the field, that it has affected clinical practice, or that it has generated substantial positive discourse in the broader medical community. Nor does the evidence otherwise demonstrate that her work otherwise constitutes a record of success in epidemiology.”  The AAO had an issue with the CDC-funded HIV prevention grants.  The grants did not identify the alien’s role in the projects that the grant funded.  AAO also found insufficient the interest in the alien’s HIV programs as there was no evidence that there was any “positive interest among relevant parties,” or that they “have been implemented in other cities’ health departments, or otherwise reflect a record of success in epidemiology research aimed at HIV prevention.”   The AAO determined that the alien petitioner was not well positioned to advance the proposed endeavor.
  3. Balancing (No, doesn’t meet this prong): The AAO did not engage in a balancing test, finding that the failure to meet the second prong was fatal for the petition. 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 public dissemination. Publications, internet downloads, and conferences can show public dissemination.
  • Any grants must mention the petitioner and identify the role of the petitioner. Any role must be critical or leading.
  • The petition must include evidence of positive interest or implementation. A petitioner may demonstrate interest with letters, inquiries, comments, requests for information, even a score of phone calls, asking about the program.  A petitioner may demonstrate implementation by letters or other documents showing that all or part of the program is being used.

If you have a great idea that you believe would be in the national interest, and would like to explore your immigration options contact an immigration attorney. Our office is experienced in National Interest Waivers petitions and can give you an honest assessment.