NIW Theory: #2 (“Outweigh”)

One of the primary reasons why petitioners fail in their NIW applications is because they lack a clear understanding of the “Outweigh” theory that USCIS applies to NIW cases. The key to a successful NIW application is to directly address the concerns of this standard and convince USCIS that you deserve a waiver for the labor certification. Below are some key points on how our office addresses this very important issue. An NIW Applicant is required to show that the benefit from his or her work will “significantly outweigh” the national interest of protecting American workers through the labor certification process. You must establish that you will serve the national interest to a substantially greater degree than an available U.S. worker having the same qualifications. The most direct and convincing way to establish this threshold is to demonstrate that you have already significantly influenced your field of endeavor. Consequently, your NIW Petition Letter should be aimed at demonstrating your previous achievements and recognition for your work – you must show a “significant history of prior achievement.” Keep in mind that the standard here is actual practical achievement and NOT potential achievement. Illustrative Hypothetical: Dr. Siglione has just graduated with a Ph.D. and he is now employed under H-1B at a Leukemia Research Center. In his NIW petition letter he writes that he is contributing to research at his lab that is directed at finding the origins of the disease, and from there he hopes to one day find effective treatments for this type of cancer. Just two weeks ago he has published two journal articles about Leukemia as 1st author and he argues that the prospective benefits of his research could one day help find a cure. Will Dr. Siglione receive an approval for his NIW? Answer: Probably not! The reason why Dr. Siglione’s NIW will likely fail is because he failed to address the concerns of the “outweigh” theory. There is little doubt that his research is important, but Dr. Siglione has done nothing to show why his work as a researcher is different than any other similarly qualified Ph.D. Leukemia researcher. Many Leukemia researchers around the nation have published as first author and nearly all research in this field could potentially lead to a cure. His petition letter fails to address why the benefits of his work “outweigh” the benefits of the Labor Cert. Program. Another common pitfall that Dr. Siglione has fallen into is that he simply writes “my work can be used in a potential cure for Leukemia.” He discusses only the potential benefit of his work and not the actual benefit already conferred on his field of research. For a case like Dr. Siglione’s our office would write, “Specifically, my work has isolated a gene vital to the pathogenesis of this disease and this research is the basis for several future drug therapies.” Oversights of this type can have an accumulative affect on your overall NIW Petition and can make a difference in its adjudication. There are few more pointers to keep in mind when considering this section of the petition letter. The quantity of your published articles is not as important as the number of citations to your work from other workers/researchers in your field. A strong NIW applicant might have 20 or more citations. (Note: in our above hypothetical, even though Dr. Siglione had a couple of published articles as first author, because they are so new, there will be very few citations to his work) If you do not have many citations, there are several methods to overcome this weakness that will be discussed later in this series. Additionally, the tone and underlying theme of most your recommendation letters should be aimed at attacking the “outweigh” argument. Our office always makes it a point to work closely with the Applicant and the authors of the recommendation letters to ensure that the emphasis of the letters is always geared towards satisfying this important element of the NIW application. As you can see, the nuances of the “outweigh” argument can be quite subtle, yet it is one of the most important aspects of your NIW petition. Many NIW petitioners who have received RFE’s or denials, contact our office asking for help, and time and time again it is the failure to address the outweigh theory that has led to their undesirable result. 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 second 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