3. NIW requirement: National interest

Precedent NYSDOT case defined three requirements for National Interest Waiver. Third of these NIW criteria, national interest, is the most difficult one to satisfy. It is considered as a key part of EB2 NIW petition and petitioner should focus on demonstrating this prong test very carefully.

National interest requirement includes several parts, let’s study one by one.

Record of specific prior achievements

NYSDOT case states:

It clearly must be established that the alien’s past record justifies projections of future benefit to the national interest.

Petitioner must demonstrate specific prior achievements which establish the alien’s ability to benefit the national interest.

Applicant’s past record of demonstrable accomplishments must be strong, convincing and distinguished from other individuals in same field of endeavor. Prior achievements may be established by submitting objective evidence in the form of:

• publications
• citations
• national or international awards
• research achievements
• memberships in significant industry or research organizations (if the members are selected by meeting some restrictive criteria, not only by paying membership fee)
• judge or reviewer of the work of other peers in the field
• invited talks or writing papers / book chapters
• presentations at national and international conferences or seminars
• patents
• trustworthy and renown media coverage

USCIS accepts also subjective evidence such as:

• testimonial letters from distinguished experts

Showing past record of achievements may seem quite similar to Extraordinary ability requirements (green card in EB1 category) – same type of evidence is used here. And even USCIS sometimes requests this kind of evidence in RFE (Request for Evidence). This is confusing because EB1 criteria normally require slightly higher level of expertise. Petitioner needs to be more experienced, awarded, influential and have more significant evidence mentioned above. It may help to use EB1 criteria as a guide for demonstrating applicant’s past track record in EB2 NIW case, even if it would not be sufficient for satisfying of EB1 requirements.

Influence on field of employment as a whole

NYSDOT case establishes:

The alien must clearly present a significant benefit to the field of endeavor.

It must be shown more than just playing an important role in a given project, if such a role could be filled by a competent and available U.S. worker.

One of the ways how to prove influential contributions is to demonstrate practical significance. Another way is to submit evidence about wide use of applicant’s work by other peers. Petitioner’s impact to the whole field may be shown through objective evidence:

• citations (and sometimes selected publications where applicant’s work is cited)
• reprint requests from other peers
• downloads
• successful practical application of patents

Significant influence on many other peers in the field may be also demonstrated with the help of subjective evidence:

• testimony from leading experts and authorities (reference letters)

Substantially greater degree than US worker

NYSDOT case says:

The petitioner 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.

The alien clearly must have established the ability to serve the national interest to a substantially greater extent than the majority of his colleagues.

Petitioner must demonstrate that his / her unique background, knowledge, skills and experience are significantly better than other peers’ skills in his / her field of employment.

When comparing to other peers it may be useful to describe the field of endeavor as narrow as possible because there will be also much less comparable individuals. For example, physicist would not be compared to wide field of all physicists but rather to a much smaller group of his expertise, i.e. pixel detector physicist. We used this narrow term in our cover letter as well as in supporting documentation.

This point is a subjective criteria and applicant should use appropriate arguments in petition letter. These statements are usually supported and demonstrated by testimonial letters from recommenders, based on evidence of prior accomplishments.

Young professionals such as PhD students or recent Master degree graduates may find this point difficult to prove due to lack of prior achievements and valuable tangible contributions.

Critical member of a team

It must be clearly established that alien is critical member of a team working on cutting edge projects serving to the national interest and the team function would be severely impaired without him / her.

Evidence is often submitted in the form of reference letters explaining concretely why beneficiary is indispensable and essential.

Adversely affected national interest if labor certification is not waived

NYSDOT case states:

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.

Petitioner from NYSDOT case failed to satisfy third National Interest Waiver prong test because he didn’t 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.

Generally, it is very difficult to demonstrate why labor certification would impair national interest. In the past, valid argument was too lengthy process of labor certification for cases where there was urgent need of applicant in some important project in national interest. However, from 2005 PERM labor certification significantly shortened processing times. Therefore, current processing times should be checked at Department of Labor website to find out if the argument is relevant. Currently (1/2013), PERM labor certification process without audit takes approximately 4 months.

Another way seems more reasonable. If researcher works for government agency or his / her research is funded by government, sometimes it requires lawful US citizenship or permanent residency to allow researcher enter government facilities. Another case is when government institution wants to offer a permanent job position to applicant but it cannot be done without green card because their policy simply doesn’t allow it. In these cases, reference letters from appropriate institutions should clearly explain why labor certification process would affect national interest negatively and that labor certification isn’t possible.

We found very little arguments and direct evidence for this point. When direct arguments mentioned above cannot be used, we have found indirect way. We let USCIS adjudicators focus more on our prior achievements and extraordinary skills. Then we stated that such exceptional abilities cannot be addressed by labor certification process which takes into account only minimum requirements and most likely weaker candidate would be hired in proposed employment. Hence labor certification cannot be used and it would affect national interest negatively.

What is not sufficient

NYSDOT case determines several following statements:

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.

It cannot suffice to state that the alien possesses useful skills, or a unique background, it must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.

In addition, unique skills and knowledge should be also compared with other peers’ abilities and shown as significantly better.

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.

Rather it should be demonstrated that alien is in the key role and the project would be jeopardized without alien. US worker with same qualification cannot replace such alien.

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.

Shortage of U.S. workers in the field of endeavor should not be used as an argument for National Interest Waiver. Rather the proposed employer may prove that he couldn’t find such a unique US expert comparable to applicant with same minimum qualification.

The petitioner’s subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit.

It is better to show already valuable tangible achievements which are some kind of guarantee of future benefits.

Innovation is not always sufficient to meet the national interest threshold.

Practical application and successful commercialization of patent should be demonstrated.

Evidence and supporting documentation

It is very important to focus on each specific detail of NYSDOT case mentioned above and prove all of them by strong evidence. It is clear that all these points are closely connected and intersect each other. Several points may be covered by one evidence.

Evidence must show how applicant’s work benefits US nation – his / her witnesses should use concrete explanations of practical applications as often as possible.

Arguments which may be used against applicant such as shortage of US workers should be avoided.

Publications

Publications should be part of every NIW case. USCIS gives much greater weight to first-authored papers than co-authored. USCIS expects that postdoctoral fellows publish usually number of papers as a part of their routine work so it is not sufficient only to submit several publications to demonstrate applicant’s significant influence on field of research. Evidence about strict peer review procedure of journal where it was published may be submitted. Positive peer review comments may be also added to the evidence of NIW case. This may help to show higher significance of petitioner’s paper.

USCIS didn’t establish required exact number of articles. We have read about NIW case with a lot of submitted papers (100) which was denied and several NIW cases with very few articles which were approved. It depends on what arguments and evidence were submitted to support quality and significance of these contributions.

Citations

Citations are widely used as an evidence how petitioner influenced other peers in the field of research. USCIS conclusively prefers independent citations rather than self-citations or citations from closely cooperating colleagues. Frequent and numerous independent citations may be considered as a proof of high impact on the field as a whole.

There is no specific requirement about how many citations are sufficient to prove influence on the research field. Even NIW cases with zero citations were successfully approved. But in such cases there is a need of other strong evidence to show significant impact on other peers in the field.

Patents

Submitting a patent itself is not sufficient to demonstrate substantial impact on the field. It is important to support patent by evidence of practical application and successful commercialization. Practical application which was beneficial to US society may be considered as a strong evidence that patent is of greater importance and influenced the field as a whole.

Letters of recommendation

Reference letters with testimonies from distinguished experts and authorities are key of every successful EB2 NIW petition. Credibility of experts must be explained in the testimonial letters. Usually in introduction of the letter experts describe their background, achievements, job title, experience etc. and they add their resume to the letter.

USCIS gives more weight to the letters from independent experts from outer circle rather than closer peers from inner circle. Following order shows importance from greater to less weight:

• government institutions
• professional or scientific societies
• industrial associations
• independent experts
• employers, supervisors, colleagues

As mentioned above, letters from outer circle from highly authoritative agencies are very valuable, especially if recommender knows petitioner only through his publications, conference contributions and work results, not personally.

Letters of recommendation must be written in laymen’s language. This means that recommenders shouldn’t use technical words but rather clear and simple descriptions. It needs to be explained what benefits does petitioner bring to the nation and how significant he / she is for the whole field of endeavor. Proposed employer should focus on description of the job position, how exactly it will be in national interest, why applicant is critical member of a team and better than other peers, why position cannot be filled by US workers etc. It should be clear that only very few top individuals with exceptional ability can accomplish the duties required for this position and petitioner is one of these few individuals. It is necessary to use concrete specific examples and describe details.

Testimonial letter should lack irrelevant evidence and avoid arguments which could be used against applicant. Supporting letters should rather confirm that applicant has already had substantial impact on the research field, not just a promise that he / she will be beneficial in the future. Supervisors shouldn’t mention that applicant made superior research discovery under their supervision because it seems like he / she didn’t contribute significantly by himself / herself and thus doesn’t deserve NIW to be approved. Proposed employer should not use shortage of US workers as an argument for national interest waiver because it will be a good reason why to go through labor certification process.

Rate of success

It is clear that this National Interest Waiver requirement is the most difficult to satisfy and crucial part of every EB2 NIW case. Petitioner should submit the most valuable evidence to meet criteria from this third NIW prong test. Majority of NIW applicants who are not approved failed to demonstrate this NIW requirement sufficiently.