EB-2 NIW (National Interest Waiver) : Requirements and 2013 Adjudication Trend of Adjudication
Here at North America Law Group/Chen Immigration Law Associates, we are experts on EB2-NIW(National Interest Waiver) immigration petitions. So far in the year of 2013, we have got over 300 NIW (National Interest Waiver) cases approval notices and helped dozens of clients successfully respond to their RFE (Request for Evidence) for cases filed by other law firms. We are committed to providing the best service available for your National Interest Waiver petition. This article serves as an explanation of the various requirements that must be satisfied for NIW (National Interest Waiver) approval, latest trend of NIW (National Interest Waiver) adjudication and also provide actual examples approval cases of our firm.
1. Basic Requirements for EB-2
As NIW (National Interest Waiver) is under EB-2 category, the applicant must meet the requirement of EB-2, which means the applicant must possess either Advanced degree (degree above bachelor’s degree) OR Exceptional Ability.
2. National Interest Waiver Requirements
Once it has been demonstrated that the alien meets the minimum requirements listed above, it must be proven that the alien qualifies for a National Interest Waiver.
“What is a National Interest Waiver?” and “What is Self-Petition”
Normally, EB-2 applications require that applicants have a job offer and undergo a labor certification to obtain a green card. A National Interest Waiver waives the requirement of the labor certification process, by establishing that the alien’s permanent residence is in the United States “national interest.” If the requirements set forth for a National Interest Waiver by the precedent NYSDOT (New York State Department of Transportation) case in 1998 are satisfied, the alien is not required to have a specific job offer, nor must they undergo the labor certification process. So an applicant can do “Self-Petition” with their cases, meaning they are the petitioner as well as the beneficiary of their cases and do not need any employer to sponsor the petition.
“What is NYSDOT and why does it apply to my case?”
In immigration terms, NYSDOT commonly refers to the 1998 precedent case that dictates the standards governing the EB-2 NIW (National Interest Waiver). In order to demonstrate that the alien qualifies for a National Interest Waiver, all three of the following criteria must be satisfied:
1. The proposed employment must be in an area of Substantial Intrinsic Merit
2. The proposed benefit of that employment must be National in Scope
3. The beneficiary must serve the National Interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
3. How to meet the requirements for National Interest Waiver
A. Substantial Intrinsic Merit
The first prong is arguably the easiest to satisfy of the three prongs introduced above. In order to demonstrate Substantial Intrinsic Merit, it must be shown that the field of endeavor is related to an important national goal and that the work is beneficial to the United States. Examples of such “national goals” could include improving the health, safety, the economy, the environment, education, or the arts. It is important to note that substantial intrinsic merit is not limited to only fields of scientific research, but can be demonstrated for almost any field, including but not limited to the arts, social sciences, and business.
Evidence: In order to support the argument that your work is of substantial intrinsic merit, one must submit evidentiary documents explaining in simple terms why your work is important and what are the practical applications or benefits of that work to the U.S. Letters of recommendation from experts in the field explaining your research and its implications and significance to the United States are suitable evidence in addition to any other publications or reports detailing the significance of your field and the benefits of such work to the United States.
Examples: These are example approvals of our firm in 2013
-A postdoctoral researcher in the field of medicinal 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.
B. National in Scope
The second prong requires that your work be National in Scope. That is, the benefits of your work cannot be limited to one particular geographical region. This is relatively easy to demonstrate when one considers trying to relate their work to a particular national goal. For instance, a physician working in one hospital may appear to only be benefiting the geographical region that the particular hospital serves. However, the physician can demonstrate that they are benefiting the nation as a whole through the dissemination of their research publications, or through the development of new procedures or techniques that are implemented in hospitals outside of their geographic region. It is generally easy to demonstrate that most types of scientific research have benefits that are national in scope, as scientific advancement in a particular area can easily be tied to a specific national goal such as healthcare or safety. However, we are also experienced and have had much success in demonstrating the national benefits of those involved in more unusual or unique fields, including but not limited to musicians, artists, economists, and web-developers.
Evidence: In addition to explaining how your work benefits the nation as a whole or is tied to a national goal, other forms of evidence can provide more support for these arguments.
A. Government funding: any instances of your work being funded by the U.S. government can easily substantiate the claim that your work has benefits to the U.S. as a whole
B. Citations: not only can citations show the impact your work has had on the field, they can also demonstrate that your work is being implemented and utilized by researchers around the nation, and therefore benefiting the nation as a whole
C. Letters of recommendation: letters of recommendation can provide statements explaining the national benefits of your work, as well as provide examples of how your work is being implemented or impacting different geographic regions
Examples: These are example approvals of our firm in 2013
-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
C. National Interest
The third prong is generally the most difficult to satisfy, and is the key to successful NIW (National Interest Waiver) approval. It must be proven that the benefit of the alien’s participation in the field of endeavor outweighs the national interest of protecting U.S. workers present in the labor certification process. To clarify the vague language, we can refer to an AAO decision: “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.”
It shows that the alien must demonstrate that it would be adverse to the national interest if they were unable to continue working in their field. Does the alien play a critical role in a project that would be unable to continue without their contribution? Would a specific area of scientific advancement be hindered without the alien’s work? Would a national goal be compromised without the alien’s continued presence in the U.S.? These are the types of considerations that must be taken into account when arguing that the alien’s continued presence in the United States is in the national interest of the United States.
Specifically, the AAO elaborated,“ The alien must clearly present a significant benefit to the field of endeavor” and must establish that there has been “some degree of influence on the field as a whole.” Therefore, the alien must show that they have influenced their field of endeavor. This can be shown through any recognition your work has received, as well as through application of your work.
Evidence: In addition to making sound structural arguments that the alien has met the requirements, evidence must be submitted to substantiate these claims. It is not enough to merely state the alien has impacted their field to a greater extent than their peers, but one must provide documentary evidence demonstrating how the alien has done so. We are experts at forming strong arguments to address each of the necessary requirements of the “national interest” prong, as well as compiling sound evidentiary support for each of the claims that we make. It is useful to consider the criteria for EB-1A (Alien of Extraordinary Ability) when compiling evidence in support of the third prong. While the standard of law is much higher for EB-1A (Alien of Extraordinary Ability) and the evidentiary requirements are thus much stricter, the EB-1A (Alien of Extraordinary Ability) criteria can provide a good idea of what types of evidence can establish the alien’s past record of achievement as well as influence on their field.
Below is a list of evidence commonly included with our EB-2 NIW (National Interest Waiver) petitions, as well as explanations for how each type of evidence can satisfy the requirements for NIW (National Interest Waiver).
A. Publications (including journal articles, book chapters, and books) and Citation Records: A complete publication record should be included with the petition in order to demonstrate the alien’s past record of scientific achievement. Publication alone, however, will not demonstrate the alien’s influence in the field. The publication record should be accompanied with a citation record in order to demonstrate the influence of the alien’s work on the field, and show that the work is being utilized by other researchers in the field. Additionally, journal impact factors and average citation records for the field can be used to show that the alien has a degree of influence above that of the average researcher in the field. It should be noted that there is no “magic number” of citations that will guarantee NIW (National Interest Waiver) approval, and there are many strategies that can be used to offset a low citation record.
B. Letters of Recommendation: Letters of recommendation are a crucial aspect of the NIW (National Interest Waiver) petition. Independent letters of recommendation (from those who have never worked or studied with you, collaborated with your, or advised your work), will carry much more weight with the USCIS than letters from dependent recommenders, and this should be taken into consideration when selecting recommenders. Letters of recommendation should discuss your research contributions and their significance in layman’s terms, and also comment directly on the benefit of your work to the United States. Letters of recommendation are also a great opportunity to demonstrate the implementation of one’s work. A letter of recommendation from someone who has utilized your work, and can explain how they have done so in the letter, is a great way to strengthen your case. As part of our service, we will draft all of the recommendation letters for you. We will advise you closely on appropriate recommender selection, and how many letters should be drafted for your case. We set out a clear strategy when drafting the recommendation letters to ensure that the letters contain all of the necessary statements to substantiate the claims we have made in the petition. Lastly, we never rely on templates to draft the letters, and instead tailor each letter to your individual needs and unique case strategy.
C. Evidence of Influence: In order to demonstrate the degree of influence you have had on your field, it is essential to highlight any instances of the application or utilization of your work. Citations are a great way to demonstrate this, but other evidence can be used as well including letters of recommendation, patents commercialization, contracts, and article downloads. The petition should highlight as many instances of implementation as possible, and provide documentary evidence to support each instance.
In sum, a variety of evidence should be presented to demonstrate how the alien qualifies for a National Interest Waiver. It is not sufficient, however, to simply list the alien’s achievements. A holistic approach must be taken to ensure that all together, the petition, letters of recommendation, and supporting evidence will prove that the alien is qualified for a National Interest Waiver. This is our goal at Chen Immigration Law Associates, and by keeping the requirements of the three-prong test in mind at every step of case preparation, we can ensure that your petition will address all of the necessary aspects of the National Interest Waiver requirements.
4. 2013 USCIS Trends of NIW (National Interest Waiver) Adjudication
1. More cases routed to NSC (Nebraska Service Center) and more RFE (Request for Evidence) Notices Issued:
This year, the USCIS changed its way of E-filing and make all E-filed cases in the NSC jurisdiction to be routed to NSC (Nebraska Service Center), contrary to their previous practice. We therefore have more chance to interact with NSC immigration officers. Although both TSC (Texas Service Center) and NSC immigration officers should follow the same adjudication standards set by the immigration law and USCIS regulations, it is not uncommon to see various adjudication standards of different immigration officers and different service centers under the same immigration petition category. Based on our experience, NSC (Nebraska Service Center) immigration officers tend to issue more RFE (Request for Evidence) notices and some of the notices indicated confusing adjudication standards. Fortunately, the majority of those cases were approved after our RFE response, making our approval rate for NIW (National Interest Waiver) cases is still over 99%.
2. More Attention to “Continuance to Work in the Same Field”:
Although the immigration law or NYSDOT does not specifically request the petitioner to provide evidence that the alien will continue to work in the same field with an NIW (National Interest Waiver) petition, it is a general theme for employment-based immigration. This year, we noticed the immigration officers from both service centers issued more RFE (Request for Evidence) notices requesting specific evidence to satisfy this requirement.
Even though the USCIS has been more strict about this requirement, this year we still have successfully filed many NIW (National Interest Waiver) cases for clients who were residing outside the United States without any U.S. job offer or clients residing in the U.S. but not employed. For those cases, it is important to consult an experience immigration law firm and formed a successful strategy.
3. More Focus on “Implementation” of the Alien’s Work
For NYSDOT test, the most important prong to argue is the third prong:
“The beneficiary must serve the National Interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”
This means that the alien must show that they have risen to a level of influence that is higher than the majority of their peers, as well as those with merely minimum qualifications to the field. It is essential to demonstrate what sets you apart from others working in your field.
One of the important aspects of one’s influence the USCIS has been focused on is the implementation of the alien’s work. Based the experience of responding to RFE (Request for Evidence), we noticed that the USCIS started to request more specific evidence of actual implementation of the clients’ work. We have successfully developed strategies to show the application or implementation of clients’ work by utilizing their citation records, pre-existing (unsolicited) evidence such as contracts/licenses to use client’s work; patents that are being commercialized, evidence of collaborations, such as emails asking for client’s research results, Reports in journals/mass media and Letters of Recommendation we drafted for clients.
We at North America Law Group/Chen Immigration Law Associates always act swiftly based on the latest trends of case adjudication and provide the most effective and efficient assistance to our clients to get case approval.
With over 300 NIW (National Interest Waiver) case approvals in the year 2013, representing clients in a variety of fields and circumstances, we are confident that we possess the experience to develop a successful NIW (National Interest Waiver) strategy for you. For a free evaluation of your credentials, please e-mail your CV to law@wegreened.com .
With this in consideration, it is important to emphasize that the processes and expertise practiced by Chen Immigration Law Associates. Not only do we develop the best possible strategies for each case, but we execute these strategies with the utmost effectiveness!
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We are pleased to announce that North America Immigration Law Group has so far received over 3,500 EB-1A, EB-1B and EB-2 NIW approval notices. In 2014 and 2015, the approval rate is 98.22% for cases using our "Approval or Refund®" (money back guarantee) service and 96.95% for all kinds of services.
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