Existing EB2-NIW, want to apply for EB1-EA

I

indiandude1

Registered Users (C)
The person who designed this interface deserves to be prosecuted. I typed in a two page long post and my login expired :(

Situation:

Citizenship - Indian
Current work status - H-1B (past the 6 year limit for the past couple of months)
Prior approvals - EB2-NIW. Self-petitioned (no lawyer). Approval date: April, 2010. Given the current date (May visa bulletin) of July, 2006, my place in the queue for an I-485 is at least 4 years away.

Due to various professional reasons, I wish to get my green card sooner. Marriage to a US citizen is a possibility but due to a personal distaste for discussing my relationship with a stranger and, personal scruples, I want to do this for myself.

Qualifications:

1. Graduated at the top of my class from one of the 5 original IITs.
2. Two masters degrees and a Ph. D. from a top 5 US engineering school. One major research accomplishment.
3. Postdoc at an Ivy League school. Two major research accomplishments.
4. Research scientist at a top 20 US school and now at a rapidly rising low-ranked US school.
5. No permanent job (thanks to the economy and the bio-obsession sweeping through engineering) as a faculty.
6. Area of research: energy, national security, physical sciences.
7. Reviewer for two journals.
8. Reviewer for National Science Foundation.
9. Reviewer for Department of Energy.
10. Publications - 17 with one additional submitted. These include Nature Materials, Advanced Materials, etc. Fairly high h-index.
11. Patents - two patent applications. One near approval and is being marketed to industry.
12. Numerous conferences including one industrial class.
13. References to my work have occurred in online media.
14. Letters of support - 4 from a top 5 US engineering school (including 2 big shots), 1 big shot from Ivy League school, 1 from a former program manager at National Science Foundation, 1 from a former program manager at DARPA, 1 from a rising star at current workplace, 1 from a chief scientist at company, 1 potential one from a CEO of an industrial consortium, etc. I have worked with all but 2-3 of these.


Questions:

1. What do you think are my chances ?
2. Can I file my I-140 and I-485 concurrently ?
3. Can the possible rejection of an application to EB1-EA affect my existing I-140 under EB2-NIW ?

Any other advice, questions, etc. ?
 
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Please read this with regard to letters of support. http://www.uscis.gov/err/B5 - Membe...ecisions_Issued_in_2010/Aug122010_01B5203.pdf

Please read this for other evidentiary evaluation methodology. http://www.uscis.gov/USCIS/Outreach/Interim Guidance for Comment/Kazarian Guidance AD10-41.pdf

Please go to www.uscis.gov and on the law tab, read: 8 CFR 204.5(h)

Below from: http://www.uscis.gov/err/B3 - Outst...ecisions_Issued_in_2010/Jan062010_01B3203.pdf

“On appeal, counsel argues that "the standards of 8 CFR Section 204(h) do not readily apply to [the petitioner's] occupation as a Gospel Recording Artist based in Belize." We are not persuaded by counsel's argument. The regulation at 8 C.F.R. § 204.5(h)(l) provides that an alien may file "for classification under section 203(b)(l)(A) of the Act as an alien of extraordinary ability in the sciences, arts, education, business, or athletics" (emphasis added). See also section 203(b)(l)(A)(i) of the Act and 8 U.S.C. § 1153 (b) (l)(A)(i). In this case, the petitioner is a gospel recording artist. The regulation at 8 C.F.R. § 204.5(h)(4) allows for the submission of "comparable evidence" only if the ten criteria "do not readily apply to the beneficiary's occupation." The regulatory language precludes the consideration of comparable evidence in this case, as there is no indication that eligibility for visa preference in the petitioner's occupation cannot be established by the ten criteria specified by the regulation at 8 C.F.R. § 204.5(h)(3). In fact, counsel has submitted evidence addressing four of the ten criteria at 8 C.F.R. § 204.5(h)(3). Where an alien is simply unable to meet three of these criteria, the plain language of the regulation at 8 C.F.R. § 204.5(h)(4) does not allow for the submission of comparable evidence.” [Emphasis added.]

Good Luck,
 
Thanks for that compendium of relevant information !!

It will come in useful when I craft my petition letter.

I know I have to meet 3/10 of the following criteria:

1. Receipt of lesser nationally/internationally recognized prizes or awards for excellence in your field;

If they mean Nobel Prize (or somewhat lesser prizes in a similar zip code), definitely no.

0

2. Membership of associations in your field which requires outstanding achievements as judged by recognized experts in the field;

Maybe. Count this as no.

0

3. Publication in major, recognized media or journals about you and your work in a field;

I have been featured in Slashdot, which is a pretty major technical blog. Do not know if it counts as recognized.

0.5

4. Participation as a judge of others in your field;

Definitely yes, at the highest levels.

1

5. Major original contributions to your field;

Definitely yes.

1

6. Authorship of scholarly articles in your field published in major publications;

Definitely yes.

1

7. Display of your work in exhibitions or showcases;

Does this mean display of your work by others ? Or by self ? If it is self, definitely the case. If it is by others, I am assuming collaborators do not count.

0.5

8. Playing critical role for distinguished organizations;

Definitely yes if being a reviewer for NSF and IEEE counts. Otherwise, I am not sure what they mean.

0.5

9. Commanded very high salary compared to others in your field;

Since I do not currently have a permanent position, I am obviously paid less than some others. It is however on the upper end for the job function I do. Does this work against me ?

0

10. Commercial success in the performing arts.

Irrelevant.

0

So, my score is 4.5 / 10.

I was also hoping to get some feedback from those that have gone through this process. Further, does it matter if the timing of your green card harms US national security ? Let me explain:

One of the areas I work is national security. One of the materials used in certain detectors runs out in 2015-16 or so (worldwide). I am currently working on a replacement detector that does not use that material. However, because I am not yet a permanent resident, I cannot write any proposals about some new ideas that I have not tried and have not been tried in the research community. Two of my references are ready to attest to that fact.

My current visa I-485 date is estimated to be sometime in 2015 (under EB2, judging from the visa bulletin). That leaves almost no time to carry out any meaningful research (these things take years).

I know that this is an excellent argument for a national interest waiver (which I already have). Is this a relevant argument for extraordinary ability ? Or can I argue that due to the immense visa backlog, the absence of an extraordinary ability visa will harm US national interest ? :)
 
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Saying yes to both #5 and #6 USUALLY results in a yes to #3, are you sure that the blog is all there is? Perhaps you have overlooked something. Look to your alma mater for references to your success.

As to #7, that applies to the arts only.

As to #8, those do count (highly).

One more tool to hopefully help.
 
BigJoe5 said:
Saying yes to both #5 and #6 USUALLY results in a yes to #3, are you sure that the blog is all there is? Perhaps you have overlooked something. Look to your alma mater for references to your success.

As to #7, that applies to the arts only.

As to #8, those do count (highly).

One more tool to hopefully help.
Click to expand...


Oh, there are plenty of journal citations. I just thought that it meant getting featured in something more layman-like, say Time, or CNN, or something like that. None of my bosses were that media savvy, so that suffered as a result.

Are journal citations to my work considered valid under #3 ?

As to #7, are scientific exhibitions (like posters, presentations, etc.) valid ?
 
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indiandude1 said:
Oh, there are plenty of journal citations. I just thought that it meant getting featured in something more layman-like, say Time, or CNN, or something like that. None of my bosses were that media savvy, so that suffered as a result.

Are journal citations to my work considered valid under #3 ?

As to #7, are scientific exhibitions (like posters, presentations, etc.) valid ?
Click to expand...

Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation. This one usually is biographical in nature or discusses "significance", "breakthroughs" or "advancements" brought about through your efforts.

As for citations, I guess it depends on the nature of the citation. Being included in a bibliography in itself could go either way. Is your work discussed at length or merely in passing and lost in a HUGE batch of citations such as to diminish its significance?

Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.

Numerous citations are good for this criterion.

Evidence of the display of the alien's work in the field at artistic exhibitions or cases. Read the whole criterion.
 
BigJoe5 said:
Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation. This one usually is biographical in nature or discusses "significance", "breakthroughs" or "advancements" brought about through your efforts.

As for citations, I guess it depends on the nature of the citation. Being included in a bibliography in itself could go either way. Is your work discussed at length or merely in passing and lost in a HUGE batch of citations such as to diminish its significance?

Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.

Numerous citations are good for this criterion.
Click to expand...

Thanks. I am going to guess no on this one. My work has been included in review articles but it is lost in a bunch of citations (I am going to assume henceforth that this criterion means that my work would have to be singled out, preferably with my name (or my co-author/PI's) name.).

As to the number of citations, it is a relative thing. I have 200+ citations to my work (removing self-citations). The h-index is at par with tenured University faculty (and I do not even have a position yet).

But I know of (and have cited) papers that have 22,000+ citations. Now, that is something in the stratosphere, that I cannot currently hope to prove.

I am guessing that I will include comments about being cited (and the stature of people doing the citing) but will not make it a major argument. Simple reason - my case is not at the top notch Nobel Prize level and trying to make it appear so will reduce my credibility across the board.

I will mention it but will not belabour the point.

Evidence of the display of the alien's work in the field at artistic exhibitions or cases. Read the whole criterion.
Click to expand...

Ok :)
 
AAO on citations: http://www.uscis.gov/err/B3 - Outst...ecisions_Issued_in_2010/Aug202010_01B3203.pdf

"On appeal, counsel asserts that, absent statutory or regulatory guidance on the matter, no minimum
number of citations can "satisfactorily be established as the magic tipping point at which an author is
internationally recognized as outstanding." Counsel is correct that neither the statute nor the
regulations require the submission of citations. As stated above, USCIS may not unilaterally impose
novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. 5 204.5. Kazarian,
596 F.3d at 1221, citing Love Korean Church, 549 F.3d at 758. Thus, USCIS cannot require the
submission of citations, let alone a specific number of citations. Moreover, requiring a specific
number of citations would not be helpful as articles in some fields may routinely garner a large
number of citations while articles in other fields may rarely garner even moderate citation.5


Nevertheless, it is the petitioner's burden to submit evidence establishing that the beneficiary's
original research constitutes a contribution to the field as a whole. While such evidence is not
limited to citations, citations often provide a useful window into the field's unsolicited response to
the beneficiary's work. The minimal number of independent citations as of the date of filing, while
not precluding a finding that the beneficiary has contributed to the field as a whole, is not persuasive
evidence of such contributions. Moreover, the petitioner has not submitted evidence that the
citations themselves are particularly notable, such as by submitting representative samples of pages
from the independent articles citing the beneficiary's work.6 Once again, the lack of copies of a
representative sample of the citation pages does not preclude eligibility. We merely note the lack of
one more type of evidence that could establish how the beneficiary's work is being applied if, in fact,
it is."

Footnotes:
5. In this case, the record contains citation evidence for several articles not authored by the beneficiary, with
some of those articles garnering 40 to 60 citations. While these articles have had more time to accrue
citations, they demonstrate that the beneficiary's field can generate a large number of citations.

6. For example, citations confirming the use of the beneficiary's model by independent research teams would
be more persuasive than a citation that cites the beneficiary's work as one of several articles in support of
background propositions.
 
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