NIW - Procedures and Requirements

Mt. Hood, Oregon

Requirements: Advanced Degree vs. Exceptional Ability

• Advanced degree: a U.S. degree above baccalaureate, or a foreign degree equivalent above U.S. baccalaureate level. Typically, Baccalaureate degree plus 5 years of progressive professional advancement equals master’s degree.

• If no advanced degree, then exceptional ability, “a degree of expertise significantly above that ordinarily encountered in the alien’s profession.

• NYSDOT Standard:

1. The beneficiary must seek to work in an area of substantial intrinsic merit.
2. The beneficiary’s work must have a benefit which will 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. The national interest would be adversely affected if a labor certification were required for the beneficiary.

---

Related Links

• Family-Based
• Investment-Based
  
• Green Card
• EB-2
• EB-5
  
• Employment-Based
• H-1B Visas
  
• PERM
• Immigration Services
• NIW
  
• NIW Procedures and Requirements
• Useful Resources
• Contact Us

Case analysis

• The beneficiary in the NYSDOT case is an engineer from India. NYSDOT filed an immigration petition under the NIW. It put up a strong case, but it was denied by USCIS, and AAO denied the appeal.  In the opinion, the three-prong test was introduced. And the main reason of denial is based on the third prong. Quote: “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.”

• Here, the most important test: “it cannot suffice to state that the alien possesses useful skills, or a unique background…, regardless of alien’s particular experience or skills, even assuming they are unique, the benefit the alien’s skills or background will provide to the U.S. must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.”

• These three prongs are very important; they remind the attorneys the importance of details. Attorneys must pay attention to the details of a particular case, and develop a strategy of how to present the case. The presentation must be customized to fit the requirements of the NYSDOT requirements. Pay attention to details, details, and details.

Definitions and Explanations

• Substantial Intrinsic Merit: To satisfy this standard, a successful applicant must show that her field of work or expertise is in U.S. national interest. This term is generally interpreted broadly. The work of most researches in scientific field could potentially have substantial intrinsic merit to the national interest of U.S.

• National in Scope: A successful applicant must show that his or her work or the effect of his or her work is not limit to a specific region or geographic area. An applicant should always link their work or profession to the impact or implication on a national level.

• Adversely Affected: A successful applicant must show that national interest would be adversely affected if a Labor Certificate was required. The applicant or the lawyer must be able to show that the benefits of the applicant’s work is so great that it outweighs the interest of protecting U.S. workers by requiring aliens to go through the Labor Certificate process. Among the three prongs, this is the most difficult to satisfy.

How to Satisfy the The Third Prong:

• Past record of achievement in the particular area;

• Past records that project future benefits to the U.S.

• Publications; awards; bonuses; recommendation letters; testimonials of peers, etc.

• “Ability to serve the national interest to a greater extent than the majority of professional peers.”

• By recommendations, prior achievements, peer reviews, awards.

• Influence on field of expertise and employment as a whole.

• Awards, patents, economic benefits generated thru work, recommendation letter, reviews, citations, references, downloads, and etc.

We are focused on immigration law. If you would like to find out whether you are eligible for NIW, or if you have any question about other immigration matters. Please feel free to schedule a consultation with Mr. Jimmy Namgyal. Contact Us.

---