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.

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.

Trends in Recent NIW decisions

We have successfully handled numerous NIW cases for foreign nationals in a wide range of fields, including in civil engineering, medicine, material sciences, software engineering, environmental engineering, and aerospace engineering. We have reviewed a lot of RFEs in NIW cases. In general, NIW is much more difficult to obtain. While the USCIS has changed directions in its adjudications, NIWs are still possible for individuals who play critical roles at their universities and companies, and have a demonstrable track record of achievements, showing that their contributions are much greater than their US citizen peers.

The Importance of Citations

When examining whether the petitioner satisfies the third prong of the three requirements, USCIS looks evidence showing the foreign national’s past track record in the field is strong and distinguished him from his peers. It helds that an impressive citation history could be used as evidence of his impact on the fields. We found evidence of citation is frequently requested in RFEs.

When judging the influence and impact that petitioner’s work has had, publication alone may serve as the evidence of originality, but it is difficult to argue that a published article is important of influential if there is little evidence that other researchers have relied on the petitioner’s findings. Numerous and frequent independent citations would provide firm evidence that other researchers have been influenced by the petitioner’s work. Their citation of the petitioner’s work demonstrates their familiarity with it.

Based on our experience, it seems that USCIS did not have specific standard about how many citations would be adequate to demonstrate a measurable impact in the field. In one approved NIW case, we did provide citations and reprint requests from other scientists in the field, including reprint requests from scientists of high reputations from prestigious research institutes in the world, to support our argument that the petitioner exceeded his peers due to his novel research contributions,. We submitted a few samples of papers that cited petitioner’s researches, and reprints requests. However, the exact number of citations to the petitioner’s work was not given, yet the USCIS found the petitioner has demonstrated his influence.

A List of Publications Alone Isn’t Enough

Every NIW case includes a list of research publications. However, the mere publication of a researcher’s findings is not sufficient to establish a substantial impact in the field. In cases of postdoctoral researchers, USCIS held that publications is an expected part of a postdoctoral appointment and therefore is insufficient to demonstrate the influence of the researcher’s work. To give an example, we refiled an NIW case for one petitioner with an impressive publication list, more than 100 papers in high-energy physics. The first NIW, filed by some other attorney was denied unfortunately. After reviewing the denial notice, we found the petitioner failed to establish that it is rare to have such a large number of publications in the field and that his findings have influenced the field in a measurable way. In another approved NIW case, the petitioner has six publications, including two in Chinese, and four presentations made at the international conferences.

To address the issue of impact in the field, we provided evidence to prove the journals that published the foreign national’s papers have a restrictive peer-review procedure, and emphasize the significance of petitioner’s contributions in the published papers. Besides testimonial letters from experts who know of the petitioner through his or her publications, anonymous peer-review comments of the petitioner’s manuscripts are also found convincing. This is especially helpful when the petitioner does to have an impressive publication list.

Patents Could Be Strong Evidence If Properly Presented

Like publications without citations, patents without evidence showing the impacts carry little weights too. For example, one electrical engineer in semiconductor laser is a co-inventor of six US patents and a co-inventor of three pending patents. In the RFE, the USCIS held that approval of patents is not rare in the United States.

Another example of an approved NIW petition. The foreign national is a postdoctoral researcher in nanomaterials. As a co-inventor of a patent granted by China Patent Office, the petitioner has made great contributions to this patented research. To demonstrate the economic benefits the patent has had, we provided ample evidence to prove this patent put forward an inexpensive, convenient and extremely reliable method to synthesize nanoscale sulfide, selenide, telluride and phosphide at room temperature. Those are important materials that have been used in a rich variety of commercial applications, such as semiconductor, holographic recording systems and electrical switching. As for the significant influence in the field, the petitioner provided evidence to prove this patent was also collected in the database of the European Patent Office, one of the world’s leading providers of technical information.

Extraordinary Ability Arguments are Occasionally Convincing

From reviewing the RFEs issued on NIW cases, we noticed the USCIS hold NIW petitioners to the “Extraordinary Ability” standards. In one case, the Service Center requested evidence of national/international awards, and publications about the petitioner, which would normally be associated with an extraordinary ability visa petition. In some RFEs, USCIS uses the exact languages of the EB1 Extraordinary Ability standards.

This is confusing because satisfaction of extraordinary ability standard is not required for an NIW case. Evidence that may not meet the extraordinary ability standard can still be influential in demonstrating the measurable impact of a petitioner’s research. However, as the VSC’s arguments demonstrate, satisfaction of the higher standards is a sure way of satisfying the third prong of the NYSDOT test.

In our approved NIW cases, to document the foreign national’s past demonstrable achievements in the fields, we do include publications, awards and research contributions of significance.

Successful NIW cases are not necessarily limited to those foreign nationals who have risen to the very top of their field. Presenting materials in support of the petition that frame the case in the most favorable light will definitely help the case. For example, it is important to present the foreign national’s field as narrowly as possible while maintaining credibility. For example, a computer scientist with expertise in biomedical informatics should not be compared with all other computer scientists, but rather with the relatively small group of professionals who have distinguished themselves in this subspecialty. The supporting documents should not refer to this foreign national as a computer scientist, but rather as a bio-informatics scientist. By narrowing the frame of reference, the foreign national will be compared to a much smaller set of U.S. peers.

Expert Testimonial Letters: Key Leading to the Success

As mentioned previously, the key to a successful NIW case would be to satisfy the third prong of the requirements. Different from EB1 Extraordinary Ability petition, which has ten specified criteria, the NIW case seems to leave a lot of room for petitioner to interpret what are deemed as compelling evidence to show the applicants are substantially better than their U.S. citizen peers. The most effective way to demonstrate measurable influence was to present an objective evaluation of the researcher’s work in the field. As noted above, citations are one form of objective evaluation. Another source would be strongly supportive testimonial letters. of influential evidence of impact is testimonials from independent experts at the highest level, ideally from officials of government agencies and highly reputable private companies and organizations in their fields.

Strong testimonial letters are key to a successful NIW case. A foreign national should obtain strong letters from both the foreign national’s “inner circle” and “outer circle” of peers. The foreign national’s inner circle includes mentors, collaborators. While these letters are given some weights, the USCIS also held letters from those the petitioner has directly worked with are possibly biased.

Independent expert opinion letters from outer circle carry substantial weights. USCIS held it is more persuasive if testimonials are from independent experts at the highest level, ideally from officials of government agencies and highly reputable private companies and organizations in their fields. They may know the petitioner primarily through their published research and presentations.

Whether the testimonial letters are from acquaintances, or from independent experts, the letters should clearly support the specific criterion claimed satisfied and avoid raising irrelevant questions. For instance, a letter from the petitioner’s postdoctoral advisor states the applicant has done substantial research under his supervision would significant undermine the assertion that applicant sustains international acclaim. A good testimonial letter should be specific about the petitioner’s contributions in the field, and stress the impact of the petitioner’s discoveries. More importantly, instead of discussing the potential benefits of the petitioner’s ongoing research to demonstrate the eligibility for a national interest waiver, the testimonial letter should emphasize that the petitioner’s findings have already had impact in the field.

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