Case: Ph.D. student gets NIW approval after Intent to Deny Notice
There are many misconceptions regarding qualifications for a National Interest Waiver (NIW). Clients often feel they do not have the required credentials or do not have a strong case, which is not necessarily true. One common misconception is that to qualify for an NIW, the applicant must have a Ph.D. Another misconception is that one must have a large number of publications. While having these things definitely helps, they are by no means the only way to demonstrate adherence to the standards for an NIW, namely:
We have witnessed many cases that, on the surface, do not seem particularly strong. However, upon further exploration, some of these cases were just as qualified for a NIW as a Ph.D. case with many publications.
Ms. Chen* was such a case.
Ms. Chen had two Master’s degrees from an American university—one in English as a Second Language and the other in Business Administration (an MBA). She was currently pursuing her Ph.D., also in Business Administration. She had contributed to several important research projects dealing with governmental informational and financial security issues. These projects were on online and financial fraud, identity theft, the black market exchange rate, and federal e-filing.
However, Ms. Chen lacked the laundry list of publications and citations most applicants have. While one paper had been accepted for publication and another had been submitted, only two of her publications were actually in print. These papers were so recent, there were no citations yet, which also made it difficult for Ms. Chen to get strong “independent expert” recommendation letters. However, Ms. Chen did have intensive conference presentations and proceeding publications.
Jane Xu was the attorney in charge of Ms. Chen’s NIW. Ms. Xu thought Ms. Chen qualified for an NIW, even though she was not the usual case. Ms. Xu realized that to show Ms. Chen’s exceptional achievements and impact on her field, she would have to adopt an innovative application strategy. In the NIW petition letter, filed March 27, 2008, Ms. Xu highlighted the importance of Ms. Chen’s current projects and specifically detailed how each addressed a threatening problem facing the United States. Ms. Xu provided exhibits demonstrating how financial fraud, identity theft, and the black market are used by organized crime and terrorist sponsoring groups, cost corporations millions of dollars, and affect millions of Americans. Attorney Xu also quoted from recommendation letters attesting to Ms. Chen being irreplaceable and integral to these projects. Finally, Attorney Xu stressed Ms. Chen’s unique combination of skills: proficiency in multiple languages and strong background in finance, economics, and international business. She emphasized how foreign Chinese companies were beginning investment projects in the United States. These companies represent billions of dollars and someone with Ms. Chen’s unique background would be important to “close the deal”.
Nevertheless, Ms. Chen received a Notice of Intent to Deny on May 8, 2008. Undaunted by the notice, Ms. Xu collaborated with Ms. Chen to uncover even more documentary evidence of Ms. Chen’s impact on her field. The importance of Ms. Chen’s papers needed to be shown without citations. Finally, they discovered that the search engine and database for research articles, IngentaConnect.com, ranked Ms. Chen’s article third out of 103 when the keyword of Ms. Chen’s research field was entered and third out of 49 articles when the keyword of Ms. Chen’s another research field was entered. On June 5, 2008, Ms. Xu submitted a response letter to the Intent to Deny notice, adding this additional evidence. By July 8, 2008, to everyone’s delight, Ms. Chen’s National Interest Waiver was approved.
Of course, not every case can have a happy ending, but, as Ms. Chen’s case shows, you should not discredit yourself based on the surface of your application. Sometimes, what is buried underneath is just as valuable, and a good lawyer, like Ms. Xu, knows it.
If you plan to file an NIW application, please send your CV to Attorney Jerry Zhang (firstname.lastname@example.org) for a free evaluation.
*This article is based on the state of the law as of the posting date. It is the responsibility of the reader to verify that the law has not changed by consulting an attorney, although Zhang and Associates will make every effort to ensure that our articles are updated periodically. In order to protect our client’s privacy, all identifying information has been changed.
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