A. Substantial Intrinsic Merit
The engineering of bridges possesses substantial intrinsic merit. NYSDOT states that the importance of bridges, and their proper maintenance, is immediately apparent. If the construction and maintenance of bridges possesses substantial intrinsic merit, many occupations will be similarly deemed to possess substantial intrinsic merit. For example, in our approved NIW cases, a postdoctoral researcher who worked in the field of organic fluorine chemistry and nano-material research, and the organic synthetic materials developed by the petitioner was directly used for Liquid Crystal Displays (LCDs), and synthesis of a serious of new drugs. The USCIS agreed that the petitioner possessed substantial intrinsic merit. Similarly, an environmental engineer whose research was in the area of transportation and air quality modeling, was found to satisfy the first requirement. Furthermore, a petitioner who explored new plasma technologies was also found to satisfy this standard. Finally, a research scientist in the field of toxicology, whose research is critical to the understanding of the toxicity mechanism not only for cadmium, but also for other toxic metals and environment pollutants, possessed intrinsic merits.
We have handled numerous NIW cases and are very successful in making a strong argument relating the petitioner’s research activities to the level of possessing intrinsic merit.
B. Proposed Benefit Must be National In Scope
For foreign nationals in many occupations, this test is also relatively easy to meet.
For instance, in the case of a chemist whose research was focused on the organic chemistry and nano-materials, we cited National Nanotechnology Initiative (NNI), to support our argument that petitioner’s research is extremely important for the US to maintain an internationally leading role in this rapidly evolving and important field, thereby directly benefited the national economy. Another example, for a medical research scientist whose research is in the area of anaerobic bacteriology and autism, we included news report showing that Autistic disorders may afflict nearly 300,000 kids in the US alone. Petitioner’s research aiming to develop rapid, accurate, and cost-effective identification schemes for clinically important anaerobic bacteria, which leads to the identification of the causes and thus the treatment for autism, has benefited the US on national in scope. In the case of the civil engineer working for New York Department of State, he satisfied this requirement by showing that New York’s bridges and roads connect the state to the national transportation system, and that maintaining them properly served interests well beyond the state’s borders.
In brief, to satisfy this criterion, we provided objective evidence, including information released by government agencies, such as National Institute of Health (NIH), and National Institute of Neurological Disorders and Stroke (NINDS), magazine and newspaper articles and reports, and testimonial letters from distinguished experts in the field, to support the claim that the foreign national’s work will have a wide-ranging impact on the field in general.
C. The Foreign National’s Work Must Serve the National Interest to a Substantially Greater Degree Than Would the Foreign National’s U.S. Citizen Colleagues Having the Same Minimum Qualifications
The final test is the most difficult to satisfy. The petitioner must clearly establish that his or her past records justifies projections of future benefit to the national interest. Thus, the foreign national’s past track record in the field must be strong and distinguished from his peers. Many NIW cases were denied because of the failure on this requirement.
The foreign national must examine others in the field and assess whether or not he or she can be deemed to be substantially better in some way than many of those working in the field. The foreign national must show that he or she presents a national benefit that is substantially greater than his or her U.S. citizen colleagues in the same field. This can be difficult for foreign nationals who are not immediately recognized as leaders in their fields. This is particularly true for recent master’s graduates or doctoral students.
For the foreign civil engineer in NYSDOT, failing to satisfying the third prong resulted in the deny of the NIW petition. Although finding that the engineer provided valuable services to the NYSDOT in maintaining and constructing New York’s bridges , the INS held that he was not influential enough in his field to benefit the national interest to a greater degree than qualified U.S. workers who were available to play a similar role. For example, although he was trained in a certain new technological method, he was not responsible for creating it.
In the matter of NYSDO, “labor shortage” argument that a foreign national’s employment is necessary to satisfy a labor shortage is no longer accepted by the INS. NYSDOT states that the labor certification process is designed precisely to address an apparent labor shortage. If a labor shortage really exists, no U.S. available and qualified workers will be found and the labor certification will prevail. NYSDOT states that the labor certification requirement exists because protecting the job opportunities of U.S. workers having the same objective qualifications as a foreign national seeking employment is in the national interest. A foreign national seeking an exemption from this process must present a national benefit so great as to outweigh the national interest in the labor certification process.
It is also noteworthy that the argument that the foreign national possesses unique skills and it is difficult to find US workers with such skills can no longer be taken as evidence for justifying a national interest waiver. According to USCIS, such cases should go through the labor certification process, not an NIW.
As to whether a foreign national is substantially better than his or her peers, NYSDOT requires that the benefit of a foreign national’s work “must greatly exceed the achievements and significant contributions”, and that he must establish exceptional ability for the EB-2 immigration visa category. This third prong, apparently is close to the “Extraordinary Ability” standards for EB1-1 extraordinary ability foreign nationals.
It is difficult to prove why labor certification would harm national interests. USCIS does not specify what are acceptable evidence either. The NYDOT decision noted that “[t]he petitioner has not shown that it will suffer a substantial disruption in its efforts to maintain New York’s bridges and roads if a national interest waiver is not granted and the petitioner is required to test the U.S. labor market through the labor certification process”. It is possible to argue that a foreign national’s service is important to their research project and a substantial disruption will occur if the lengthy labor certification process must be processed. However, the PERM, which replaced the lengthy traditional labor certification and RIR, was effective in March 2005, and the labor certification process is expected to be completed in about 60 days, the lengthy LC will be likely to be challenged by USCIS as evidence to bypass the labor certification and receive an NIW approval. Still, there are some factors may prevail to receive an NIW approval. In our approved cases, one postdoctoral research scientist in solid state and materials chemistry, showed that his proven track record of achievements was evidence of the likelihood of his having greater impact in the future.