Should I support this national interest waiver request?

August 23, 2023 5:37 AM

I'm a new faculty member at a top US university. A faculty member from a Global South country reached out to me asking to write a letter of support for their permanent residence application. What are the ethical and legal considerations here?

They reached out to me through a law firm that seems to specialize in these cases, and the law firm works by drafting the letter of support for me, and then I make small edits and sign off on it.

The guy's work is fine I guess? I do work internationally with colleagues from different countries, and his record seems about average for his career level and country of origin. Which is to say, poor by elite American university standards, but probably par for the course given how much harder it is to do science in his country. My understanding is the letter of support would say wildly enthusiastic things about his work, which I think would be academically false, but maybe correct for USCIS norms?

Ethically, if I support his NIW application, would that harm others who are going through the process (i.e., is there a fixed number of people they let in through NIW?) I have family members who were refugees and immigrants, and am sympathetic to immigration woes, so would like to help if I can. Is the bar for signing an NIW letter of support supposed to be "yes, he is a world-class top researcher in the field" or can it be more like "sure, he has a PhD and seems to have publications in line with his level of experience"? FWIW, I'm not a Big Name in my field, just a brand new professor at a Big Name university. Is this a very common request for professors, and should I only be writing these letters if I'm actually familiar with the requester's work?

Secondly, are there any possible legal ramifications on my end if I agree and just sign off on whatever they draft? From my scientist perspective, I feel like the letter might be disingenuously excessive, but is that normal for this sort of thing? Also, he's from a country the US considers to be an enemy (e.g., less friendly than our relations with, say, China), and the US has been cracking down lately on American profs having connections to China, so wondering if that should be a factor here.

Essentially, I'm happy to help somebody move to a better life in the US if it's not at an unfair cost to others and wouldn't get me into huge legal trouble. Any thoughts, anecdotes, or opinions here would be appreciated!

posted by anonymous to Law & Government (10 answers total)

I'm slightly suspicious just based on the fact that you are a new faculty member and this person is asking you. Generally these letters are written by people who know them well.

That said, might you have misunderstood the purpose of the letter? I'm not a hundred percent sure about this but your letter is not supposed to be about how they deserve their immigration papers because they are better at their job than everyone else. This isn't a skill contest or a job interview or a justification for their promotion or an appeal for this person to get a raise. Right?? IDK maybe my knowledge is incpmplete or outdated, but AFAIK H1-B visas are merit based, but permanent residency is not. As I recall from my own applications and my own visa journey in the US, permanent residency in the US is about showing that this person is an established member of the community, in that they are who they say they are, and they aren't a criminal or spy or the wrong kind of superhero by night, and they have ties to the community they live in which justify becoming a permanent resident. So you don't need to write a letter that says "This person is amazing at their job and will likely get a Nobel Prize someday," rather, you need to write a letter that says, "I know this person well, have known them for six years now, they are my reliable colleague whom members of the faculty and student body depend on in many ways, and also they volunteer at a local animal shelter, and oh by the way they started an international students' support group at the school which helps a lot of students and the support group would cease to exist without this person's efforts."

Which brings me right back to my surprise that they asked YOU, a new faculty member who has not known them for long, to write this letter for them. To me that's the weird part.

If it turns out that my understanding of this situation is incorrect, mods, please feel free to delete this comment.
posted by MiraK at 6:09 AM on August 23, 2023 [2 favorites]

NCIS has info about what they’re looking for here if you want to see the bar from the horse’s mouth.

My partner signed a letter in support of an O-1 visa for a colleague which is another form of “exceptional ability” visa. In his case, they had worked together in the same lab while getting PhDs at a top 5 program for their field so he had no qualms about signing something that said the guy was at the top of his field with a bunch of overzealous language since he had the PhD and publications to corroborate it. Sure, the guy was not a MacArthur Genius Grant sort of guy, but if you zoomed out a bit and thought about the pool of all folks in the field, he definitely was participating in the advancement of research at the national/international level. Perhaps this frame is helpful for you?

In your shoes I’d ask the lawyer how my support fits into the process and what I’m doing (certifying general characteristics of the person vs. existence of a specific job vs. their academic merit) and ask about any legal ramifications.
posted by A Blue Moon at 6:33 AM on August 23, 2023

Which brings me right back to my surprise that they asked YOU, a new faculty member who has not known them for long, to write this letter for them. To me that's the weird part.

This doesn't make me suspicious, but it does make me wonder if there is some miscommunication somewhere - I was once asked something similar from someone I had briefly met once, and I declined by urging them to ask other people in their network (which I knew existed in the US) who were 1) higher ranked than me and 2) knew them better than I did. I let them know if they actually couldn't find anyone else to agree to do it, I'd do it, but that it didn't seem like I was really their best option.
posted by coffeecat at 8:06 AM on August 23, 2023 [2 favorites]

I finished a PhD in physics before leaving academia and having to market myself to potential employers, so I really understand where you're coming from with respect to feeling a little dishonest writing that sort of thing.

As scientists, we are used to scientific honesty being presenting *all* available facts, for and against a hypothesis so that other people with training and interest in fairly analyzing the evidence can make their own call. That's not how the world works a lot of the time, and definitely not when you or someone else is applying to things!

If you choose to help this person out, which, I don't have enough evidence to say one way or the other, that's you're call, then your job is not that. Your job is presenting the "for" side only. Which, as a scientist, feels just a little dishonest.

But the best piece of advice I've had when going through the whole process went something like "It is not dishonest to describe yourself to people on their terms, you are dishonest if you sell yourself short." And while we are talking about your colleague here, it may well apply to you in the future.

Look, for a lot of things in the universe, voltage, position, velocity... the goodness or badness of things, the zero point is arbitrary. If you're a perfectionist like I am at times, the zero point for something being good is at positive infinity and things are greater and lesser degrees of "needs improvement." But that's not what people who aren't perfectionist PhD scientists are going to be expecting. We live in a world where anything less than a 5 star review is evidence to get someone fired. Think of how a business school would describe a faculty member they want to stick around!

Speaking of "average" - average, meant with statistically accuracy, is better than most people on a decently good day. Heck, if what you are measuring has a lower bound, it likely means better than most people on most days. That is actually pretty darn good. And if you're talking about out of a subfield where the number of people on the planet who could do that specific job could fit in a medium to large auditorium, that is pretty amazing. But that's not what is getting communicated when you use the word average. So don't shy away from language of praise when you're helping anyone, including yourself, apply for things in the wider world.
posted by Zalzidrax at 8:12 AM on August 23, 2023 [1 favorite]

IANAL and definitely not yours, but I used to work for an immigration attorney who did this kind of work in the 90s. I would talk to the attorney as A Blue Moon suggests; you will not be the only person writing a support letter, most likely, but the lawyer or their assistant can give you some context for what you need to write.

My sense on reading your question is that they are looking for someone with your institutional affiliation to weigh in. This is because USCIS (the INS in my day) was looking for credentials. The immigration apparatus traditionally worked on credentialism in ways that increasingly make little sense (H-1Bs being the big example, where a college degree is necessary, and what's equivalent to a college degree can be a Thing). Also, in my day, when everything was filed as paperwork because the industry was only beginning to get fillable electronic forms (I remember being super happy when I stopped having to type one form on carbon paper), we used to talk about the "telephone book test" when we submitted an application: if it thunked on the examiner's desk when they put it down, the application was more likely to be accepted.

TBH, based on what I know, I suspect your letter may not get more than the most cursory skim by the USCIS folks and a note as "support letter from [Prestigious University] faculty". The lawyer probably asked you after asking the client (your global south colleague) for a broad set of colleagues who might write in support based on personal acquaintance: personal because this is a favor. The support draft you get, which is the kind of thing I used to prepare, will have the keywords that the USCIS wants to see in support of this case. In that sense, it's a lot like putting together a resume for a computerized system. It's looking for the keywords and not for an honest technical evaluation of work that you would write to a colleague in the field.

(NB: all uses of "application" here include petitions; some are technically petitions and others are technically applications; that's not a distinction you need to worry about.)

TL;DR: talk to the lawyer but this sounds pretty normal to me as someone who used to work in the field.
posted by gentlyepigrams at 8:44 AM on August 23, 2023 [2 favorites]

TLDR: They appear to be applying for the least prestigious category of Employment-Based Immigration visas from the First Preference EB-1 classification. You are likely a fine judge of that, as specifically as you interpret the claims or even one claim. We just did this at work.

First: here's the hierarchy of visas by skill:

O-1 Extraordinary ability visa is the true top of the top, and is unrelated to the E for employment visas. Would a rando on the street recognize your name? Like the extra extra ordinary Sting?

E-11: Person of Extraordinary Ability. Are you a professional cellist and the Chicago Symphony wants to hire you? Messi? What a very extraordinary Employee!

E-12: Outstanding Professor or Researcher. Do you have a field of study or just a medial procedure named after you? Do other academics think you are smart enough to educate/research an essential field of study?

Finally - the visa classification likely in question:
E-21: Member of the Professions Holding an Advanced Degree or a Person of Exceptional Ability Who is Requesting a National Interest Waiver (NIW)

This E-21 classification is primarily for addressing staffing shortfalls in STEM and medical professions, so don't let the "EXTRAORDINARY ABILITY" throw you off. Most doctors and nearly any specialist would quality for at least an E-21. There is two parts to this visa application, and the first the actual researcher part, and the second is the NIW. These are inter-related but lets start with the first, where they need to "demonstrate international recognition for their outstanding achievements in a particular academic field".

The criteria that they need is any TWO (in order of importance):

• major prizes or awards for outstanding achievement
• membership in associations that require demonstrated outstanding achievement
• published material in professional publications written by others about the noncitizen's work in the academic field
• judged of the work of others in the same or allied academic field
• original scientific or scholarly research contributions in the field
• authorship of scholarly books or articles in scholarly journals with international circulation in the field

Yes, these should be all prominently listed on their cv, but you ask them questions, interview them, google search them. You are the expert evaluating how "major" the major prize/award is, or if it's just a lampshade. You are not expected to vouch them as a person, and you don't need to answer all the questions and address every claim. The letter from the law firm is likely structured to address everything, but you can evaluate only one.

Second is the NIW part of the application, which their employer is requesting to avoid having to provide a labor certification. The primary claim here is that this person's visa is in the interest of the United States. Grand stuff. But there is a reason - many professional visa's require a labor certification, and that generally takes considerably more time to fulfill. This certification essentially requires the employer to make the job available for Americans to apply for, including advertising the position and then interview any qualified U.S. workers before they can claim that they need the visa. Slow.

The NIW at a minimum requires an advanced degree and at least five years of progressive experience, or, much less commonly, that they qualify as a person of exceptional ability. NIW also need to provide evidence that:

• the proposed endeavor has both substantial merit and national importance
• the applicant is well-positioned to advance the endeavor
• it would generally be beneficial to the United States to waive regular requirements of a job offer and thus of a labor certification.

Out of context this sounds a bit extreme - but it is 'generally beneficial' to train more nurses so a professor of nursing would find a low barrier to get a NIW. You will be a good judge of if your field needs more bodies to meet growth or fill positions because everyone without work restrictions leaves for better money in private enterprise.

You do not need to make the whole case for the candidate, it's not a whole reference letter for a job. It is up to the applicant/law firm/sponsor to build their petition and argue their case. You are providing what evidence you want to support, so feel free to choose a single claim for any of the visa classification requirements or the NIW requirements. It can be as short as two paragraphs: your claims to expertise and the evidence: your expert opinion.
posted by zenon at 10:57 AM on August 23, 2023 [3 favorites]

I actually first wrote out your concerns point by point, but realized that was backwards.

Here they are:

1. You are an excellent reference as a faculty member at a top US university, even if you don't know them personally. You are a domain expert evaluating their cv in the context of your field
2. the law firm drafted the letter to 'guide' the process. Edit that thing like a freshman paper. In my experience this process is hardest on people with the least social connections who end up cold soliciting. That could be cultural, or neurodivergence, or they are just shy, but part of this is separating out those emotional considerations and the professional requirements. I treat the HR/lawfirm as the primary audience of the actual contents letter, and understand that many people will be superficially involved in handling the application. This is not private correspondence. Remember, others were also asked and you are under no obligation. If the applicant didn't contact me first then I treat it as a strictly professional obligation. Obviously the applicant would appreciate it, and so will their sponsoring org, but you have many demands on your 'professional' time.
3. norms: How do you evaluate their 'contribution' is the central question - is 'fine', 'average' and 'poor by elite' enough? That depends on the field. You do not need to be wild, or even optimistic, and most defiantly do not put anything you feel is false. I feel like there is two factors, on one end is the sponsors claims need/priority and on the other is the applicants claims to specialized skills/knowledge/experience/talent. Obviously the sponsor thinks enough of all of this to get a lawyer and solicit your assistance. You are in the position of evaluating all claims.
4. ethical: there is not a fixed number of either the visa or the NIW. However without the NIW he would be required to actually compete for the position in the job market. The question here is does the org have difficulty filling these types of positions and looking to just speed up the process? Or is it trying to insulate this particular applicant?
5. obligation: I feel an extra obligation due to my own immigration journey. It is totally uncompensated work that carries a real weight with it. And I often never hear from the applicants again, which took a moment to adjust to. I have turned down requests, and if I accept I simply aim to be as coldly judgmental as possible, in the understanding that I am serving as only a small cog in the process, one that is there assure that an informed judgement is defensible
6. the bar for signing an NIW letter of support is not necessarily 'world-class top researcher' but it is often that they can fill a position that is deemed a priority - STEM, medicine, etc. Consider if the applicant could easily take their skills to Canada or another nation. Are they, their skills/smarts/experience specifically, in demand? That's a strong argument for NIW.
7. This can be very common request for professors; it depends on the field. In STEM yes. It's not clear if they are applying at your institution/department, and if so you should ask around your department to see what others have done. The letter from the law firm hints at how pro-forma it all can be. There will be pressure from the sponsor to just go along, and I have found requesting more info is as good as just opting out, if I are needing to navigate a quiet exit to the situation. Their whole goal is avoiding delays. To that end these are always under intense timeframes - I always fall back on the "that won't be possible at this time" to let the law firm know, otherwise they will continue to reach out.
8. should you only be writing these letters if you are actually familiar with their work? Maybe? Not necessarily? It's your gig as an academic to pass judgement, to ascertain the importance of things inside your domain. This is not a letter of reference, it's expert opinion that only people like you can make FOR the USCIS.
9. legal ramifications of just sign off on whatever they draft: NO. DO NOT DO THAT. If the letter feels excessive or disingenuous - remove those parts. You can opt instead to talk about how important the field is and how critical it is to the US generally that this person contributes to that.
10. country of origin: if that is a relevant factor then include it, otherwise no. Mostly no. Your role here is to be impartial to their actual embodied self, where they are from or if they are a women or overcame hardship, unless it is specifically tied to their skill, art or whathaveyou. Just the facts.

posted by zenon at 10:59 AM on August 23, 2023 [2 favorites]

zenon's response is great. Just reiterating that this is a pretty common thing, especially in STEM. The purpose of the letter is for you to evaluate their work as a field expert, not to provide a personal recommendation.
posted by mr_roboto at 11:16 AM on August 23, 2023

Mod note: From the OP:

Thanks for your advice, everybody, this is really helpful. Just to be clear, I don't know this person at all -- we've never interacted before, I'd never heard of them before, never read or cited their work, etc. They reached out because they wanted an independent expert to give an objective view of their work, so part of the dishonest feeling is I don't know them at all! If somebody I knew personally asked for me this, I'd sign off on it in a heartbeat. But in this case, I'm wondering if helping this stranger would give an unfair advantage over others applying, or even get me in any trouble. In any case, I'll reach out to the lawyers like you suggested.

posted by travelingthyme (staff) at 3:43 PM on August 23, 2023 [1 favorite]

Yeah, OP, Zenon knows what they're talking about much better than I do, please listen to them. I was mistaken in my assumption that qualifications and expertise have little to do with this letter.
posted by MiraK at 1:08 AM on August 24, 2023