In 1998 the Immigration and Naturalization Service (INS) published a precedent decision restricting the use of national interest waivers (NIWs) as a way to bypass labor certification for individuals in the EB-2 immigrant visa category. Since then, USCIS has become increasingly restrictive toward NIW application, which can be evidenced from RREs that frequent request for independent advisory opinion letters from individuals who are not immediate circle of colleagues, US government agencies and recognized organization. Citation of petitioner’s work has been given more weights as evidence of impact on the field. Also, it is noticed in RFE issued, USCIS tends to arguably request for evidence that would normally be associated with an extraordinary ability visa petitions, such as awards, and demonstration of sustained acclaims.
Based on our experience in NIW cases and handling of numerous RFEs, we would discuss about fulfillment of each of the three requirements in light of the NYSDOT standards and get a glimpse of the current trends in NIW adjudications.
What is Matter of New York State Department of Transportation (NYSDOT)?
In 1998 the former Immigration and Naturalization Service (INS) published a precedent decision restricting the use of national interest waivers (NIWs) as a way to bypass labor certification for individuals in the employment-based second (EB-2) immigrant visa preference category.
The petitioner, the New York State Department of Transportation (NYSDOT), filed an immigrant visa petition on behalf of a civil engineer whose expertise is in pre-stressed concrete construction and design of post-tensioning and of curved bridges. Petitioner believes the foreign national qualified for an NIW. The foreign employee had been employed by NYSDOT for five years after he obtained his Master’s degree in Civil Engineering from Iowa State University. The employer provided evidence stating that 60% of New York’s bridges contain steel bearings which are susceptible to earthquake damage. As a civil Engineer, he had involved in detailed seismic analysis using state-of the-art seismic analysis software. The beneficiary also analyzes and designs curved bridges. The employer also testified that his work can provide 10 to 15% economy over a conventional system comprising of straight girders. The employer also pointed to a national shortage of engineers with experience in curved bridges. Finally, the employer noted that 32% of all bridges in the United States are deficient in some way and the nation’s need for expert engineers with experience in structural rehabilitation . The above arguments, and similar testimony from numerous other witnesses, focus largely on the critical state of the bridges and related infrastructure in New York and elsewhere in the United States. INS did recognize the importance of the alien worker’s work, however, it notes the issue in this case is not whether proper bridge maintenance is in the national interest, but rather whether this particular beneficiary plays a significant role in the preservation and construction of bridges, to a greater extent than U.S. workers having the same minimum qualifications.
The New Standard on National Interests Waiver
In NYSDOT the INS set forth a new three-part test that foreign nationals must satisfy to obtain an NIW. To satisfy the NIW threshold, the petition must show that:
- The foreign national’s work is in an area of substantial intrinsic merit;
- The proposed benefit of the foreign national’s work is national in scope; and
- The foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Generally speaking, the first two requirements are relatively easy to satisfy, and the third prong of an NIW case is the most difficult to satisfy. The petitioner must show that he or she presents a national benefit that is substantially greater than his or her U.S. citizen colleagues who possesses the same qualification in the same field. For researchers, an important part of satisfying this requirement is establishing that the researcher’s work has had a measurable influence in the larger field. However, NYSDOT failed to specify what would constitute proof that an alien will serve the national interest to a substantially greater degree than would an available U.S. worker with the same minimum qualifications.