The Administrative Appeals Unit (AAO) recently held that if a case does not establish the factual basis of a prima facia case, then it will be denied without a request for additional information.
The case involved an Outstanding Researcher.(OR) The AAO, quoting a Ninth Circuit case, Kazarian v. USCIS 2010 WL 725317, said that there are two prongs to establish whether the case satisfies regulatory requirements.
The first is whether the case has the requisite evidence. In an OR case, the petitioner must have the two out of six criteria set forth in the regulation.
The second is whether the evidence meets final merit. This is where the case gets interesting. Granted initially it was a poorly prepared case. But the AAO suggested a number of things, with no precedence, that seemed absurd. Here is a short list:
1. The beneficiary was on Peer review Committee of journals. The AAO suggested that most scientists do this. My understanding is that only senior scientists are given this privilege.
2. The AAO suggested that most researchers gets grants. No, labs and senior scientists gets grants, junior members don’t. As a matter of fact, not so long ago there was an article in the Wall Street Journal about how it was the junior or novice scientists that came up with novel ideas that changed the world. Einstein, Newton etc were in their prime when they discovered their seminal research. Yet junior scientists are NOT given grants.
3. The AAO states that the petition requires an offer letter from the sponsor. In an OR case, the sponsor is the hiring institution. They have to sign the I-140 and the petitioning document. Why would they do that, if they did not intend to offer the beneficiary the job?
4. The Petitioner must provide documentary evidence of the employer’s ability to pay. If the petitioner states (under oath) in the I-140 their gross and net; I think they meet their prima facia obligation. If Texas Service Center (TSC)(where the case got denied) does not think this is enough to establish the fact, then an RFE would be appropriate.
I know there is a huge backlash against any type of employment based immigration, and I know there is a high unemployment rate. But to stay competitive, we MUST do research. And most researchers in this country come from foreign lands. If we dont keep abreast of science and technology, most high tech jobs will be outsourced. India will do the research, have the patents. And we will only pay second fiddle.
And if the TSC adjudicators do not believe me, they need to get into their cars, drive less than 3 miles down Stemmons Freeway to Harry Hines Blvd. There is UTSW, one of the premier medical school and research institution in the US. They have three Nobel laureates and countless foreign researchers. And think, if we dont change our policy, all the Nobel prizes will go to other countries.