NIW Theory: #1 (NYDOT Case)

There is no doubt that a National Interest Waiver (NIW) is an attractive option for many of our readers - yet there is still some confusion about what criteria the USCIS uses when considering NIW applicant. The seminal case that defines the NIW factors now used by the USCIS is known as NYDOT. In general, USCIS will look to these three NYDOT factors to determine whether you qualify for a National Interest Waiver: 1. Whether the alien seeks employment in an area of substantial intrinsic merit. First you must establish that your occupation or your field of research possesses substantial intrinsic merit. In other words, your work must benefit the national interest in some way. In our experience, this factor is easily met and we have never received a Request for Additional Evidence (RFE) that has used this first factor as its basis. 2. Whether the proposed benefit will be national in scope. The 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. This second factor, like the first factor, is easily met as long as your work is in some way connected to a national scheme. Practice Example: Dr. Tang is an electrical engineer who is working on the New York power grid to prevent the massive blackouts that the region recently suffered. Technically, she is only helping the New York region with her work, yet the USCIS found that since the New York power grid connects to the national power grid; Dr. Tang’s work was “national in scope” 3. Whether the alien will serve the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications. This final factor is the most important and difficult prong to satisfy. Here the USCIS requires you to demonstrate that your work will benefit the national interest to such a degree that it “considerably outweighs” the national interest of the labor certification program. For example, if you are a lab researcher with a Ph.D. you must be able to demonstrate that you are better than other U.S. lab researchers with a Ph.D. Showing a history of “significant contribution” to your field can do this. The USCIS wants to see that you have already made a substantial impact on your field. This can be done in a number of ways including evidence of any awards you have won or by showing a large number of citations to your published works. The reason for our high rate of success with NIW’s lies in paying meticulous attention to this third prong. It is not enough to simply regurgitate an Applicant’s CV or list of published works in the Petition Letter. After careful research into the Applicant’s field, our office presents a logical, step-by-step argument of why the Applicant’s work is better than a similarly qualified U.S. worker. This is the key to a successful application. Practice Example: Dr. Hamid is a Post Doc researcher at a lab that is researching causes and treatments for hearing loss. There are literally thousands of medical researchers in the United States – the challenge in Dr. Hamid’s case was to differentiate him from all the other medical researchers to show that he would serve the national interest to a significantly greater degree than a similarly situated U.S. researcher. As is our usual practice with NIW applicants, our research team began an intensive investigation into the state of Dr. Hamid’s field (aural medicine) and determined that three of Dr. Hamid’s studies could be considered ground breaking in comparison with the rest of the field. We focused on these three studies and their practical applications to hearing treatments when discussing this third NYDOT factor. We first explained the state of the research field in general and then discussed how Dr. Hamid’s research significantly impacted a new direction of research and treatment in clear, simple terms that was easy for the adjudicating officer to follow. Much to Dr. Hamid’s delight, his NIW was promptly approved due to the strategy suggested by our research. As always, jclawoffice.net is committed to providing our readers with the advice and analysis they need to stay informed of even the most difficult aspects of immigration law theory. This is the first installment of a ten part series discussing the essential elements of a successful NIW Petition. Keep checking back for additional installments and new treatises on various subjects affecting you and your immigration issues. —————————————————————————————————————— 陈丹虹律师事务所提供 Law Offices of Jean D. Chen 2107 N. 1st Street, Suite 300 San Jose, CA 95131 Tel: [phone] Fax: [phone] E-mail: [e-mail] www.jclawoffice.com