Detailed Analysis of EB2 National Interest
1. NYSDOT Case - An Important Case on EB2 National Interest Waiver Petition
The National Interest Waiver (NIW) is an attractive option for many immigration applicants. Yet there is still some confusion about what criteria the USCIS uses when considering the NIW applicant. The NYSDOT case that defines the NIW criterion is now used by the USCIS. In general, USCIS will check three NYSDOT criterion to determine whether an alien applicant qualify for a National Interest Waiver petition.
The 1998 EB2 National Interest Waiver Petition case involved an alien beneficiary who worked as a Civil Engineer for New York State Department of Transportation (NYSDOT) for 5 years. The alien beneficiary provided "professional engineering services for the rehabilitation, replacement, maintenance and inspection of bridges."
The alien beneficiary's experience includes "prestressed concrete construction and design of post-tensioning and of curved bridges." In the NIW petition cover letter, the employer argued that the alien beneficiary's "continued employment was in the national interest, because his work would help improve the seismic resistance of bridges."
The employer indicated that 60% of New York Stats' bridges contain steel bearings which are susceptible to earthquake damage. The alien beneficiary has worked on detailed seismic analysis using state-of-the-art seismic analysis software. The employer argued that such research was essential to the development of resistant structures.
The employer also explained that the alien beneficiary was involved in the analysis and design of new curved bridges which are 10 to 15% more economical in building and maintenance than conventional systems. Finally, the employer submitted evidence showing that there was a national shortage of engineers who had the type of expertise skills possessed by the beneficiary.
On August 7, 1998, the USCIS (then INS) issued a precedent decision (Matter of New York State Department of Transportation, or NYSDOT) clarifying raising the standard for applicants in this category. Since the passage of the Immigration Act of 1990 (IMMACT), the INS has been flexible in adjudicating NIW petitions. Each NIW case was decided on its own merits. There was no clear definition of what "national interest" was.
According to the NYSDOT decision, an applicant must meet the following three tests:
1) Applicant's prospective employment must be in an area of "substantial intrinsic merit." However, the INS emphasized here that eligibility for the NIW "is not established solely by a showing that the beneficiary's field of endeavor has intrinsic merit."
2) The proposed benefit must be national in scope.
3) Petitioner must show that "the national interest would be adversely affected if a labor certification were required for the alien." That is, "the petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien."
2. The Background Issues for New York State Department of Transportation (NYSDOT) Case
NIW has been very popular since its existence. It has been an option for those who qualify and do not wish to undergo the tedious and time-consuming process of Labor Certification. Perhaps it is because of the sheer volume of applications that were filed, the INS decided to tighten up the liberals standards that were previously in place.
This case involves the New York State Department of Transportation (NYSDOT) having employed a foreign national as a Civil Engineer in 1993. The foreign individual has a Master of Science degree in Civil Engineering from Iowa State University. His expertise, as articulated by the lawyer for NYSDOT, is in "pre-stressed concrete construction and design of post-tensioning and curved bridges." NYSDOT submitted an employment-based immigrant visa petition under the National Interest Waiver provision that was denied by the Vermont Service Center (VSC) in April 1998. This case was subsequently appealed. NYSDOT was unsuccessful in its appeal and the case was dismissed by the Administrative Appeals Unit of INS. This decision will likely have a significant impact on future NIW filings.
The main issue in this case appears to be whether it would be in the "national interest" to exempt a foreign national from having a job offer and requiring the employer to undergo labor certification. The Administrative Appeals Unit in the NYSDOT case repeatedly emphasized on the Labor Certification itself being in the "national interest." Thus, "an alien seeking an exemption from the Labor Certification must present a national benefit so great as to outweigh the national interest inherent in the labor certification process."
The decision further stated that it is insufficient for the employer or the foreign national to show that there are no available U.S. workers to fill the position that has been offered. After all, it is the very function of the labor certification process. i.e. to test the labor market.
Prior to articulating the above, the INS had suggested that the following 7 factors may be influential in determining whether an applicant's work was in the national interest:
1) improving the U.S. economy;
2) improving wages and/or working conditions of U.S. workers;
3) improving education and training programs for U.S. children and/or under-qualified workers;
4) improving health care in the U.S.;
5) creating more affordable housing for low income residents of the U.S.;
6) improving the environment and/or conserving natural resources; or
7) working on behalf of a U.S. government agency
3. The Precedent Decision on New York State Department of Transportation's (NYSDOT) EB2 National Interest Waiver Petition
USCIS' AAO (Administrative Appeals Office) held that the following factors must be considered when evaluating a petition for a EB2 National Interest
1) Whether the alien seeks employment in an area of substantial intrinsic merit
The EB2 NIW petitioner must establish that the alien beneficiary's proposed employment in United States is in an area of substantial intrinsic merit. The importance of the occupation must be established as a threshold requirement. If a particular field of endeavor is related to an important national goal, this requirement should not be difficult to meet.
In the NYSDOT case, the AAO found that the beneficiary's occupation (Engineering of Bridges) met this threshold. However, the eligibility for a national interest waiver is not established solely by a showing that the alien's field of endeavor has intrinsic merit. Blanket waivers of the job offer and labor certification requirement for entire fields of specialization are not authorized under the statute.
2) Whether the proposed benefit will be national in scope
The National Interest Waiver petition must show that the proposed benefit will be national in scope. Merely serving a regional, local, or private interest is not sufficient for waiver of job offer and labor certification offer. In the NYSDOT case, the alien beneficiary's occupation met this threshold, because the proper maintenance and operation of New York State's bridges and roads connecting the state to the national transportation system met this threshold.
While the alien's work was limited to New York State, a particular geographic area, the AAO noted that the New York State's bridges and roads connect the state to the U.S. national transportation system. The proper maintenance and operation of these bridges and roads therefore serve the interests of other regions of the United States, and the proper maintenance of New York State's transportation infrastructure has no adverse impact on the interests of other regions.
In the AAO's precedent decision on NYSDOT case, the AAO sets a low threshold for meeting the standard of "the proposed benefit will be national in scope". Even essentially local in nature, an economic activity could be tied into the national economic network, and therefore could be said to have U.S. national interest. It is clear that AAO has set a low standard for meeting this criterion for working on one state's road and bridge infrastructure.
3) Whether the significant benefit from the alien's participation in the national interest "considerably" outweighs the inherent national interest in the labor certification process
The third and most important standard focuses on the alien applicant - will the alien's national interest waiver outweigh the national interest in protecting U.S. workers through the labor certification process? This standard sets up a balancing of both national interests, with the national interest in the labor certification process as a strong adverse factor in granting the national interest waiver.
Therefore, the alien applicant must submit strong evidence which should establish that the alien will "present a significant benefit" to the field of endeavor. USCIS states that "playing an important role" in a project that is in the national interest is not sufficient to meet the burden of EB2 National Interest Waiver petition. Also, it is not sufficient to demonstrate that the alien applicant's experience and skills are "unique", the benefit of the alien's skills and background must "considerably outweigh" the national interest in the labor certification process.
Unlike the requirements for EB1 extraordinary ability, in which the USCIS has defined clear criteria in the regulations, the standards for NIW petition rely on terms like "significant benefit" and "considerably outweigh", and usually unmeasurable in terms of exercise of discretion by USCIS adjudicator.
4. The Analysis of EB2 National Interest Waiver Petition NYSDOT Decision Prong 1: Substantial Intrinsic Merit
First, alien applicant must establish that his/her occupation or field of research possesses substantial intrinsic merit. In other words, the alien applicant's work must benefit the U.S. national interest in some way. To meet the first prong of the NYSDOT standard, the petitioner should establish that the alien beneficiary's employment in the United States is in an area of substantial intrinsic merit. The importance of the alien's employment or the field of endeavor should be established to meet the threshold requirement.
In the NYSDOT case, AAO demonstrated that a particular field of endeavor could relate to an important national goal of the United States, and this requirement should not be difficult to meet for most alien applicants in their EB2 NIW petitions.
Because alien applicants with "exceptional ability" may qualify for EB2 national interest waiver, by substantially benefiting the national economy, cultural or educational interests, or welfare of the United States, the AAO has concluded that the national interest can be served by cultural means, as well as by "means more directly linked to economic or physical well-being." Due to the USCIS' liberal policy for the first prong, it is not surprising that USCIS normally does not deny an EB2 NIW petition solely for failure to meet the first prong of the NYSDOT test.
The failure to meet the first prong of NIW test may result in a NIW petition denial. For example, the denial of an EB2 NIW petition by a traditional Korean physical therapist was grounded in part on the USCIS' decision that the alien applicant's physical therapy services relied on unproved therapies that "had not gained broad acceptance in the general scientific community," and therefore could not constitute substantially meritorious activities, and with substantial intrinsic merit.
To qualify for a EB2 National Interest Waiver, the petitioner needs to show that the alien applicant works in a field that will substantially benefit to the United States, or it is related to an important U.S. national goal. After the NYSDOT case, the previous USCIS listed factors can be used to guide whether an employment field has substantial intrinsic merit, or whether the alien's employment in the proposed field:
1) Improves the U.S. economy;
2) Improves wages and working conditions of U.S. workers;
3) Improves education and training programs for U.S. children and under-qualified workers;
4) Improves health care;
5) Provides more affordable housing for young and/or older, poorer U.S. residents;
6) Improves the environment of the U.S. and make more productive use of natural resources; or,
7) Has been requested from an interested U.S. government agency.
The employment with “substantial intrinsic merit” may include researchers in most scientific fields, social scientists studying societal trends in the U.S., or alien's work having the ability to affect and improve the U.S. economy or social policies.
In the NYSDOT case, the bridge engineer’s employment was found having substantial intrinsic merit by USCIS, because building and maintaining bridges for interstate highways and protecting drivers on those highways are important U.S. national goals.
The following are examples of approved EB2 National Interest Waiver petitions for their employments with "substantial intrinsic merit":
- A postdoctoral researcher in the field of chemistry developing anti-viral and anti-cancer drugs contributes to the health of millions in the U.S.
- An civil engineer working on improving the durability of asphalt improves infrastructure, safety, and transportation in the U.S.
- A consultant in the field of Petroleum Engineering improves the efficiency of energy production in the U.S., and contributes to the development of environmentally-friendly practices.
- An opera singer brings the arts to society, and contributes to the body of knowledge on vocal health.
- An animator contributes to the advancement of American art and design.
- A physician in the field of gastroenterology contributes to the advancement of the diagnosis and treatment of digestive diseases, improving healthcare in the U.S.
- An entrepreneur contributes to the economy and creation of jobs within the U.S.
- A research associate in the field of economics contributes to risk management and economic growth in the U.S.
- A medical researcher in the field of oncology impacts healthcare nationwide through research contributing to the development of cancer therapies.
- A physician contributes to the advancement of diagnostic practices that are implemented across the nation.
- A postdoctoral researcher in the field of electrochemistry contributes to performance of batteries, which can be used nationwide.
- A musician, through their nationwide performances and the dissemination of their music through CD sales, contributes to the artistic culture of the nation as a whole.
- A geologist studying mineral-water reactions contributes to the water safety of the U.S.
- A web-developer contributes to the development of web-content that will be used nationwide.
Generally, this criteria can be easily met in most cases, and many Request for Additional Evidence (RFE) has not used this criteria as its basis.
5. The Analysis of EB2 National Interest Waiver Petition NYSDOT Decision Prong 2: Benefits National in Scope
Then, the alien applicant must show that his or her undertaking or research field will provide a benefit on a national scale. The applicant’s work must benefit a national goal rather than a local or regional goal. The eligibility for EB2 national interest waiver could not be established solely by proving that the alien applicant's employment or field of endeavor has substantial intrinsic merit. The blanket waivers of the job offer and labor certification requirement for entire fields of specialization are not authorized by USCIS under the EB2 National Interest Waiver statute. The petitioner should show that the alien's proposed benefit should be national in scope also.
The alien's employment should promote national scope. Therefore, merely serving a regional or private interest is not sufficient for the national interest waiver. It is important to know that benefiting one or more regions within the United States at the expense of other region's interests would not meet this requirement of the NIW petition.
For many alien applicants, meeting the second prong for EB2 National Interest Waiver petition is not very difficult, because the relationship between the U.S. national goal and the alien's activity need not be directly related. For the NYSDOT case, the alien beneficiary's work is "the proper maintenance and operation of bridges and roads connecting the State of New York to the national transportation system", and it is deemed by AAO to have met this threshold of "benefits national in scope."
While we know the alien's employment was limited to a regional geographic area which is New York State, the AAO's decision indicated that New York State's bridges and roads connect the state to the national transportation system. Therefore, the proper maintenance and operation of these bridges and roads serve the interests of other regions of the country, thus benefits national in scope.
It is apparent that NYSDOT case has set a low threshold for meeting this National Interest Waiver standard. People can argue that almost any economic activity could be tied into the U.S. national economic network, even if essentially local in nature, and therefore could be said to benefit the U.S. national interest, because the example of the alien's work on one state's road and bridge infrastructure in the precedent NYSDOT decision by AAO support this view.
Other examples of EB2 National Interest Waiver petitions that the alien applicants met the "benefits national in scope" threshold include:
1) an Aerodynamic Engineer working for Boeing - AAO held his research work on aerodynamic phenomena was national in scope, because of his work's impact on Boeing which is a world leader in the aerospace industry; and
2) a Chemical Researcher working for a private company - AAO held his employment allowed the company to dominate the world market for their particular product.
3) In one NIW petition case, an Electrical Engineer employed at New York State's power agency, and working on power grid to prevent the massive blackouts that the region recently suffered. USCIS found that since the New York power grid connects to the national power grid, the alien applicant's work was “national in scope.”
6. How to Prove Proposed Benefits Are "National in Scope", and the Activities Considered as Insufficiently National in Scope by USCIS
It is relatively easy to prove that the alien applicant's employment would not have a limited local influence or impact. The alien's work may be limited to a particular region or area of the United States, but its impact should serve a larger U.S. national goal.
In the NYSDOT case, the alien engineer’s employment was found to satisfy the requirement of "national in scope" by USCIS, despite the limited area of New York State in which the engineer sought to work:
“While the alien’s employment may be limited to a particular geographic area, New York’s bridges and roads connect the state to the national transportation system. The proper maintenance and operation of these bridges and roads therefore serve the interests of other regions of the country. Moreover, nothing in the record indicates that proper maintenance of New York’s transportation infrastructure would have an adverse impact on the interests of other regions.”
Many researchers have published their research results in national or internationally journals, which can demonstrate that their work is national in scope. Other examples include:
- A researcher of carbon capturing technology who demonstrates that his work impacts the entire nation with respect to environmental sustainability and self-sufficient energy sources.
- A petro-engineer whose work in the oil industry affects the entire nation with respect to the nation’s economy and the cost-efficiency of oil extraction.
After the NYSDOT case decision, there are some activities that are considered insufficiently national in scope by USCIS, and their impact on a national level is negligible, such as services of teachers, pro bono attorneys, and gourmet chefs. The following EB2 national interest waiver petitions are considered to be similarly "attenuated at the national level" and therefore fail to meet the second prong of the NYSDOT standard:
- The work of an alien inventor of a lightweight luge sled was not national in scope. Though the alien applicant asserted that it would open up the sport of luge to the average consumer in the United States, the alien did not show how his invention had made any notable economic impact - it had not been picked up by ski resorts or gone into mainstream winter sports.
- An educational program coordinator who specialized in Tibetan performing arts failed the “benefits national in scope” test. The alien applicant argued that his work would preserve Tibetan performing arts, but the USCIS countered that his students would be mainly members of the Tibetan exile community in the United States. USCIS argued that the preservation of culture alone was not national in scope if it was not widely available.
- The services of a special education teacher working in an economically disadvantaged urban neighborhood failed the “benefits national in scope” test. The bilingual and bicultural teacher's work was considered not sufficiently national in scope.
- A scholar of oriental sports medicine whose publications and work only helped his own ethnic community in a certain geographic area also failed the “benefits national in scope” test. USCIS held that the alien applicant did not make contributions on the national level, because if he had made any major scientific advances, they would not remain within one individual ethnic community.
- USCIS indicated that a bilingual counselor at a state university, assisting in the social and academic integration of international students, was not performing services sufficiently national in scope to warrant favorable consideration.
- USCIS held that a trade specialist, who based his EB2 NIW eligibility upon increasing one city's trade with China by improving its competitiveness, could potentially detrimental to other cities in the U.S. Therefore, in this case, the benefit was not only purely local, but could even be harmful to the U.S. national interest.
- An alien applicant's positive effect on the U.S. national economy has received mixed results for the EB2 NIW petition. In one case, the petitioner argued that her work directly supported over 200 jobs and had a notable impact on the U.S. trade deficit. She produced independent evaluations to prove this assertion. The USCIS accepted her contention, but noted that working in the export business alone would not be accepted as main evidence of a national impact.
- In one case the AAO rejected the argument that a positive impact on the economy constitutes a national impact. This petitioner, who produced capacitors, argued that his international sales would exceed $25 million, but he failed to produce convincing evidence to that effect.
Here, the key point is that a local work, no matter how important that is carried out locally, cannot satisfy the "benefits national in scope" threshold for an EB2 national interest waiver petition. Thus, it eliminates some alien applicants' eligibility for EB2 national interest waiver petition.
7. The Analysis of EB2 National Interest Waiver Petition NYSDOT Decision Prong 3: The Significant Benefit from the Alien's Participation in the National Interest "Considerably" Outweighs the Inherent National Interest in the Labor Certification Process
The third and most important EB2 national interest waiver standard focuses on the particular alien applicant. The benefit derived from the alien applicant's participation in the national interest field of endeavor must "considerably" outweigh the inherent national interest in Labor Certification process which is in place to protect U.S. workers.
Thus, this third EB2 NIW standard sets up a balancing of U.S. national interests, with the U.S. national interest in the labor certification process as a strong adverse factor in granting the EB2 National Interest Waiver petition. The alien applicant or U.S. employer must present strong evidence or arguments for this standard.
Because of the USCIS' bias toward the labor certification process, it is difficult for EB2 national interest waiver applicants to satisfy this third NIW standard. The AAO's NYSDOT decision never specified what kind of evidence must be provided to meet this requirement. As a hint, the NYSDOT decision indicated that "playing an important role" in a project with U.S. national interest is not sufficient to meet this requirement.
The submitted evidence should establish that the alien applicant will provide a "significant benefit" to the field. Therefore, only indicating that the alien applicant's skills are "unique" is not sufficient, but rather the benefit of the alien's experience and skills should "considerably outweigh" the U.S. national interest in the labor certification process.
Unlike the standards for EB1 Extraordinary Ability petition, in which the USCIS has defined clear criteria in terms of types and quality of evidence in the regulations. The third NIW standard is ambiguous, and it does not give the alien applicant or employer a workable and practical way to meet the target, by relying on unmeasurable terms like "significant benefit" and "considerably outweigh".
Due to the vagueness of the NYSDOT third prong. USCIS has provided EB2 national interest waiver petitioners with a more practical standard for measuring the alien applicant's services against the protection of U.S. workers through the labor certification process. The USCIS has stated that the NYSDOT third prong can be also satisfied if the alien applicant could serve the U.S. national interest "to a substantially greater degree than would an available U.S. worker having the same minimal qualifications. The beneficiary must demonstrate the service to the national interest by a record of achievements "with some degree of influence on the field as a whole."
8. How to Prove that Requiring a Labor Certification Would Adversely Affect the U.S. National Interest
Proving the first two prongs of the three-prong test for EB2 National Interest Waiver petition is not very difficult for many petitioners, but proving the third prong could be challenging for some EB2 National Interest Waiver petitioners. In the NYSDOT case, the petitioner failed to show that it would “suffer a substantial disruption in its efforts to maintain New York’s bridges and roads” if an EB2 National Interest Waiver petition were not granted.
To meet this requirement, the alien applicant should demonstrate that “the national interest would be adversely affected if a labor certification were required.” It means that the alien applicant should show a national benefit that is so great that the benefit outweighs the national interest in protecting job opportunities for U.S. workers having the same minimum qualifications through the DOL's labor certification process.
For the third prong test, the petitioner may argue that the alien applicant's skill set and achievements are outstanding, thus the labor certification process may overlook the exceptional skills and outstanding achievements, and therefore harm the U.S. national interest, by employing other workers only meeting the minimum qualification requirements for employment in the proposed field.
To help satisfy this requirement, the alien applicant may focus on several aspects:
1) Alien's past record of achievement: The alien applicant may provide evidence of the alien's past record of achievement. The alien applicant should establish that “the alien’s past record justifies projections of future benefit to the national interest.” These specific past achievements should distinguish the alien applicant from other people in the field. These past achievements can be shown in the form of publications, citations, prizes or awards, patents, organization membership, judging the work of others, presentations at conferences or seminars, authoring book chapters, and media coverage.
2) Significant impact or influence on the field: The alien applicant may demonstrate a significant impact or influence on the field of endeavor. The alien applicant could demonstrate “a significant benefit to the field of endeavor” by showing the practical significance of the alien’s work or the widespread adoption by others in the field, through evidence such as citations to the work or successful applications of the work in the field.
3) Skills, Abilities, and Expertise: The alien applicant may demonstrate that his or her skills, abilities, and expertise can serve the U.S. national interest to a greater degree than the majority of other similarly trained or educated peers and colleagues in the field.
4) Subjective arguments in the NIW petition cover letter: To show the “serveing the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications,” the alien applicant could make subjective arguments in the NIW petition cover letter pointing to the alien’s expertise in the specific field.
9. The "Labor Shortage" or Alien Applicant's "Uniqueness" Are Not Sufficient for NYSDOT Third Prong of EB2 National Interest Waiver Petition
The NYSDOT third prong eliminates the “labor shortage” arguments or claims for some EB2 national interest waiver applicants. It is no longer viable to argue that an alien applicant's employment is necessary to satisfy a labor shortage in the United States, because the labor certification process is designed exactly to address the issue of labor shortage in the United States.
USCIS 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.” If a labor shortage really exists in a field or industry, then no U.S. workers are available to qualify the job, and therefore a labor certification application for an alien worker will prevail.
Based on the USCIS decision for NYSDOT case, EB2 national interest waiver petitioners should no longer argue the uniqueness of an alien applicant's skills and experience, or how difficulty to find U.S. workers with such skills to justify a National Interest Waiver request, because the alien applicants with such skills or experience should go through the labor certification process, not an EB2 NIW process.
10. How to Meet the NYSDOT Third Prong of EB2 National Interest Waiver Petition - Alien Applicant's Standing in the Field
Only focusing on the importance of the alien applicant's field will not suffice for an EB2 national interest waiver petition. An important factor in the NYSDOT third prong determination is that a petitioner needs to emphasize the alien applicant's standing in the field, and the importance of alien's work at a national level. Evidence should be submitted regarding the relative standing of the alien applicant in the field, and submitted evidence should establish that the alien is superior to other workers in the field.
It is USCIS' view that only the individuals who will be serving critical U.S. interests should be issued the National Interest Waivers. For the quality of evidence, USCIS will focus on the alien's history of valuable contributions in the field, the critical role played in completed projects, and the alien's contributions in terms of their practical significance.
For example, USCIS denied an EB2 National Interest Waiver petition filed on behalf of medical researcher whose research lacked immediate clinical or practical significance, and resulted in untested theoretical model. The USCIS adjudicator indicated that the National Interest Waiver application was premature, due to the theoretical nature of the research, and explained that only tangible and immediate manifestations of a "track record of success" would support a research based National Interest Waiver petition. For this case, USCIS has evaluated the alien's contributions in terms of their practical significance.
11. Use the Publication Citations as Strong Evidence for Your EB2 National Interest Waiver Petition
When evaluating alien's publication citations and an alien’s research work, U.S. Citizenship and Immigration Services (USCIS) will determine the significance of the alien’s original contribution to the field that resulted in the citations.
To use the citations as strong evidence for EB2 National Interest Waiver Petition, the alien applicant should establish the publication's circulation and intended audience. Some citations, especially passing citations, do not suffice. Also, articles that cite the alien‘s work as one of multiple footnotes or endnotes are generally not “about” the alien‘s work. USCIS may not be persuaded that citations of an article authored by the alien beneficiary constitute published material about the alien‘s work.
The alien applicant should include citation report from an online source (GoogleScholar, SciFinder, or the Web of Science). Citation record can help USCIS understand that the field has acknowledged the alien applicant's research, and original research contribution in the field.
In some cases, inclusion of a lengthy list of referenced articles that often accompany published articles might be probative of the alien’s ability, because the alien’s contributions served as a significant, original contribution that spurred the subsequent references and citations.
12. How to Reply RFE (Request For Evidence) Request for EB2 National Interest Waiver Petition?When an USCIS adjudicator is unable to complete the processing of an EB2 National Interest Waiver petition without further information, it will send out a Request For Evidence notice to ask required evidence. The alien applicant should read and comply with the request carefully, then submit the evidence to USCIS, and including a copy of RFE letter and place the attached gold sheet on top of the submitted documents.
For Form I-140 petition in the EB2 National Interest Waiver category, the alien applicant should be a member of the professions holding an advanced degree or an alien of exceptional ability, and the petitioner must establish that the national interest would not be served if the petitioner was required to obtain a labor certificate for the proposed employment.
If the alien applicant is a researcher, the petitioner should submitt evidence establishing he or she authored several scientific publications. The petitioner also submitted reference letters from individuals working in his or her field of specialty attesting of the significance of his or her work.
The submitted evidence should establish that the petitioner's work has yet had any wide effect on his or her entire field. While adding to the overall body of knowledge in a given field is important, it also should establish that the petitioner is eligible for national interest waiver.
Also, the petitioner must establish that he or she has a past record of specific prior achievement with some degree of influence on the field as a whole. The petitioner' previous work influence on the field as a whole must justify projections of future benefits to the national interest. Reference letters without any independent and objective evidence would not suffice to establish prior achievement.
13. USCIS Decision For New York State Department of Transportation's NIW Petition
The following is the exact language of the decision by the Administrative Appeals Unit that USCIS (then INS) has stated it will use as a standard while processing all NIW request pending before and after August 1, 1998.
NEW YORK STATE DEPT OF TRANSPORTATION, Petitioner
In Visa Petition Proceedings
EAC 96 063 51031
Designated by the Acting Associate Commissioner, Programs,
August 7, 1998
(1) An alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education which could be articulated on an application for a labor certification.
(2) General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic issue.
(3) A shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver. Given that the labor certification process was designed to address the issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than waiving a labor certification.
The employment-based immigrant visa petition was denied by the Director, Vermont Service Center, and is now before the Associate Commissioner for Examinations on appeal. The appeal will be dismissed.
The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality Act, 8 U.S.C. o 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks to employ the beneficiary as a civil engineer. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States. The director found that the beneficiary qualifies for classification as a member of the professions holding an advanced degree but that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States.
Section 203(b) of the Act states in pertinent part that:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability. --
(A) In General. -- Visas shall be made available. . . to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver of Job Offer. -- The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States. It appears from the record that the petitioner seeks to classify the beneficiary both as an advanced degree professional and as an alien of exceptional ability. The record establishes that the beneficiary holds a Master of Science degree in Civil Engineering (Structures) from Iowa State University and thus qualifies as a member of the professions holding an advanced degree. The issue of whether the beneficiary is also an alien of exceptional ability is moot. The remaining issue is whether the petitioner has established that a waiver of the job offer requirement, and thus a labor certification, is in the national interest.
Neither the statute nor Service regulations define the term "national interest." Additionally, Congress did not provide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by increasing the number and proportion of visas for immigrants who would benefit the United States economically and otherwise. . . ." S. Rep. No. 55,1 O1 st Cong.,1 st Sess.,11 (1989).
Supplementary information to Service regulations implementing the Immigration Act of 1990 (IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 29,1991 ), states:
The Service believes it appropriate to leave the application of this test as flexible as possible, although clearly an alien seeking to meet the [national interest] standard must make a showing significantly above that necessary to prove the "prospective national benefit" [required of aliens seeking to qualify as "exceptional.") The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest. Each case is to be judged on its own merits.
Several factors must be considered when evaluating a request for a national interest waiver. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. This beneficiary's field of endeavor, engineering of bridges, clearly satisfies this first threshold. The importance of bridges, and their proper maintenance, is immediately apparent. It must be stressed, however, that eligibility is not established solely by a showing that the beneficiary's field of endeavor has intrinsic merit. A petitioner cannot establish qualification for a national interest waiver based solely on the importance of the alien's occupation. It is the position of the Service to grant national interest waivers on a case by case basis, rather than to establish blanket waivers for entire fields of specialization.
Next, it must be shown that the proposed benefit will be national in scope. While the alien's employment may be limited to a particular geographic area, New York's bridges and roads connect the state to the national transportation system. The proper maintenance and operation of these bridges and roads therefore serve the interests of other regions of the country. Moreover, nothing in the record indicates that proper maintenance of New York's transportation infrastructure would have an adverse impact on the interests of other regions. We therefore conclude that the occupation in this case serves the national interest.
The final threshold is therefore specific to the alien. The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien. The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.
Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. It is not sufficient for the petitioner simply to enumerate the alien's qualifications, since the labor certification process might reveal that an available U.S. worker has the qualifications as well. Likewise, it cannot be argued that an alien qualifies for a national interest waiver simply by virtue of playing an important role in a given project, if such a role could be filled by a competent and available U.S. worker. The alien must clearly present a significant benefit to the field of endeavor.
With regard to the unavailability of qualified U.S. workers, the job offer waiver based on national interest is not warranted solely for the purpose of ameliorating a local labor shortage, because the labor certification process is already in place to address such shortages. Similarly, the Department of Labor allows a prospective U.S. employer to specify the minimum education, training, experience, and other special requirements needed to qualify for the position in question. Therefore, these qualifications, taken alone, do not justify a waiver of the certification process which takes these elements into account.
Because, by statute, "exceptional ability" is not by itself sufficient cause for a national interest waiver, the benefit which the alien presents to his or her field of endeavor must greatly exceed the "achievements and significant contributions" contemplated in the regulation at 8 C.F.R. o 204.5(k)(3)(?(F). Because the statute and regulations contain no provision allowing a lower national interest threshold for advanced degree professionals than for aliens of exceptional ability, this standard must apply whether the alien seeks classification as an alien of exceptional ability, or as a member of the professions holding an advanced degree.
The petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit. While the national interest waiver hinges on prospective national benefit, it clearly must be established that the alien's past record justifies projections of future benefit to the national interest. The inclusion of the term "prospective" is used here to require future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative.
The petitioner, the New York State Department of Transportation (NYSDOT), has employed the beneficiary since November 1993. The beneficiary's supervisor, Project Engineer Anil Desai, P.E., describes the function of the NYSDOT Structures Division as "the provision of professional engineering services for the rehabilitation, replacement, maintenance and inspection of bridges." Counsel states that the beneficiary's "expertise is in pre-stressed concrete construction and design of post-tensioning and of curved bridges."
A.M. Shirole, P.E., then Director of Structures and Deputy Chief Engineer at NYSDOT, stated in a November 3,1995 letter that 60% of New York's bridges contain steel bearings which are susceptible to earthquake damage. The beneficiary "has been involved in detailed seismic analysis using state-of the-art seismic analysis software." Mr. Shirole observes that recent earthquakes have demonstrated "the need for careful implementation of new guidelines for improving the seismic resistance of bridges." The petitioner has submitted evidence showing that the State of New York has withstood four earthquakes at or above 5.0 on the Richter scale since 1884, as well as numerous smaller earthquakes.
The beneficiary also analyzes and designs curved bridges, which "can provide 10 to 15% economy over a conventional system comprising of straight girders." Mr. Shirole asserted "I am personally aware of the national shortage of the type of expertise [the beneficiary] possesses in the design of curved girder bridges." Knowledge of specialized design techniques would appear to be a valid requirement for the petitioner to set forth on an application for a labor certification. Mr. Shirole's assertion of a labor shortage, therefore, should be tested through the labor certification process.
Mr. Shirole continued:
32% of all bridges in the United States are deficient in some manner. . . . As more and more of the bridges that were built in the post world war construction boom reach the end of their service life, the nation's need for expert engineers with experience in structural rehabilitation has already started out pacing their availability, indicating their shortage in the industry's marketplace.
Harold J. Brown, Administrator of the New York Division of the Federal Highway Administration (FHWA), states that "the work of the FHWA is in the national interest, as it will benefit the whole of America in providing a safer and cost-effective traveling way across the nation." Mr. Brown makes no specific assertion about the beneficiary, offering only the general statement that "maintenance of a trained and competent engineering staff by each State DOT is paramount to the success of the Federal Highway program."
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. It is indisputably true that the nation's bridges play a fundamental role in the transportation system and, by extension, in the economy itself which depends on the transportation of goods and mobility of commuters and tourists. The employer's assertions regarding the overall importance of an alien's area of expertise cannot suffice, however, to establish eligibility for a national interest waiver. The issue in this case is not whether proper bridge maintenance is in the national interest, but rather whether this particular beneficiary, to a greater extent than U.S. workers having the same minimum qualifications, plays a significant role in the preservation and construction of bridges.
Anil Desai asserts that the beneficiary's "qualifications make him ideally suited for the kind of complicated engineering design that is done here." George A. Christian, P.E., Director of the Bridge Design Section at NYSDOT, states that the beneficiary's prior work experience "was a key consideration in our hiring him in 1993." Lowell Greimann, Chair of the Department of Civil and Construction Engineering at Iowa State University, states that the beneficiary's "unique background and experience in the field of bridge rehabilitation by applying techniques such as post-tensioning is a resource that can be applied toward the many bridge projects upcoming in the United States."
Any objective qualifications which are necessary for the performance of the occupation can be articulated in an application for alien labor certification; the fact that the alien is qualified for the job does not warrant a waiver of the job offer/labor certification requirement. It cannot suffice to state that the alien possesses useful skills, or a "unique background." As noted above, regardless of the alien's particular experience or skills, even assuming they are unique, the benefit the alien's skills or background will provide to the United States must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process. P.Y. Manjure, Chief Executive of Freyssinet (India) where the beneficiary worked for two years, states that the beneficiary "had rigorous training in the use and application of the world famous Freyssinet System of Post-tensioning." Ayaz H. Malik, P.E., Chairman of the Bridge Design Committee at NYSDOT, states that the beneficiary "has worked on innovative projects such as segmental arch structures patented by the French company 'Matiere'." It is not clear in what capacity the beneficiary "worked on" the Matiere project; the beneficiary's involvement with Freyssinet and Matiere, standing alone, does not qualify him for a national interest waiver. Simple exposure to advanced technology constitutes, essentially, occupational training which can be articulated on an application for a labor certification. Special. or unusual knowledge or training, while perhaps attractive to the prospective U.S. employer; does not inherently meet the national interest threshold. The issue of whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the Department of Labor.
George A. Christian observes that NYSDOT, and other federal and state agencies; are in the process of converting to metric measurements: Mr. Christian notes that the beneficiary's previous experience with metric measurements is aiding in this transition. The beneficiary's knowledge of this system would not rise to the level of being in the national interest for purposes of section 203(b)(2)(B) of the Act, since standard English measurements can be converted to metric though simple and widely available arithmetical formulas. Moreover, the metric system is accepted as the standard throughout most of the industrialized world, and is therefore commonly known among alien engineers. In any event, the employer's need for a worker trained in the metric system can be expressed on an application for a labor certification.
Reports submitted on appeal reflect substantial cost savings on projects on which the beneficiary worked. The record does not show that these savings are due to the beneficiary's involvement, or that comparable projects executed without the beneficiary incurred significantly higher costs. The reports merely indicated that the projects on which the beneficiary worked could have cost more than they actually did.
A number of the witnesses in this case assert that engineers with the beneficiary's qualifications are in short supply, yet are desperately needed because of the deterioration of U.S. bridges. The petitioner has never clearly explained why the job offer and thus the labor certification requirement should be waived. Given the asserted shortage of qualified engineers with the requisite training, and the evident existence of an offer of permanent employment, the situation appears to correspond closely to the very situation that the labor certification process was designed to address.
Mr. Christian states in a letter that the beneficiary's "training and on-the job experience becomes all the more important since our engineering staff development is a cost-intensive, time consuming process that affects the productivity and quality of the design process." In fact, documents submitted subsequent to the appeal establish the beneficiary's continued involvement in various projects undertaken by the petitioner. The Service does not dispute that the beneficiary provides valuable services to his employer; at issue here is the effect of such services on the national interest when compared to others in the profession. The Service also does not dispute the advantage to the petitioner of retaining qualified staff rather than training inexperienced, newly hired workers. The contention that no other experienced workers are available, however, should be tested on an application for a labor certification. The 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. Furthermore, with regard to experience, the regulations indicate that ten years of progressive experience is one possible criterion that may be used to establish exceptional ability. Because exceptional ability, by itself, does not justify a waiver of the job offer/labor certification requirement, arguments hinging on the degree of experience required for the profession, while relevant, are not dispositive to the matter at hand.
Based on the above discussion and a careful review of the record, it is concluded that although the petitioner has shown that the beneficiary is a competent engineer whose skills and abilities are of value to his current employer, the petitioner has failed to establish that a job offer waiver based on national interest is warranted. As is clear from a plain reading of the statute, it was not the intent of Congress that every person qualified to engage in a profession in the United States should be exempt from the requirement of a job offer based on national interest. Likewise, it does not appear to have been the intent of Congress to grant national interest waivers on the basis of the overall importance of a given profession, rather than on the merits of the individual alien as they relate to the job to be performed. Moreover, the mere fact that an alien may play an important role in the activity to be performed by the petitioner is insufficient to establish eligibility for a job offer waiver based on national interest, since qualified U.S. workers may be available to play a similar role. Nothing in the legislative history suggests that the national interest waiver was intended simply as a means for employers (or self petitioning aliens) to avoid the inconvenience of the labor certification process. On the basis of the evidence submitted, the petitioner has not established that a waiver of the requirement of an approved labor certification will be in the national interest of the United States.
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, U.S.C. o 136l. The petitioner has not sustained that burden. Accordingly, the decision of the director denying the petition will not be disturbed:
This denial is without prejudice to the filing of a new petition by a United States employer accompanied by a labor certification issued by the Department of Labor, appropriate supporting evidence and fee.
ORDER: The appeal is dismissed.
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