Minimum Requirements: “Advanced Degree” or “Exceptional Abilities”

At a minimum to qualify for a National Interest Waiver (NIW) the applicant must meet standard EB-2 criteria: an advanced degree. A U.S. academic or professional degree or a foreign equivalent degree above that of a Bachelor’s degree will be sufficient. In the absence of an advanced degree, a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive experience in the specialty is considered the equivalent of a Master's degree. In the alternative, the applicant can claim exceptional ability, i.e. a degree of expertise significantly above that ordinarily encountered in the alien’s field of expertise.

However, as the Administrative Appeals Office (“AAO,” the appellate body reviewing USCIS decisions) states, whether an alien seeks classification as an alien of exceptional ability or as a member of the professions holding an advanced degree, the alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise. Instead, specific criteria have to be met. These criteria were laid out in the NYSDOT case, described below.

The NIW Standard: NYSDOT Case

In order to qualify for a National Interest Waiver (NIW), an applicant must satisfy the requirements of the three-prong test laid out in In re New York State Dept. of Transportation 22 I&N Dec. 215 (Comm. 1998) (“NYSDOT”):

• The beneficiary must seek to work in an area of substantial intrinsic merit;
• The beneficiary’s work must have a benefit which will be national in scope; and,
• 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.

In the NYSDOT case, the beneficiary was a civil engineer from India who specialized in bridge engineering projects for NYSDOT. NYSDOT filed an immigrant petition for the engineer requesting a National Interest Waiver. The case appeared to be persuasive; the petition included several testimonials about the beneficiary’s excellent engineering skills and how his expertise was in short supply and was important to the U.S. (given the importance of bridges and their safety). However, USCIS denied the petition, and the AAO denied a subsequent appeal as well.

In the NYSDOT case, several reasons were given why the petition was denied. First, a petitioner cannot establish qualification for a national interest waiver based solely on the importance of the beneficiary's occupation. While the Associate Commissioner acknowledged that engineering is a field of substantial intrinsic merit, that fact alone did not suffice to grant the waiver. Neither did the acceptance by the Associate Commissioner that while the beneficiary's employment was limited to a particular geographic area, New York's bridges and roads connect the state to the national transportation system and hence the prospective benefit was national in scope.

The Associate Commissioner summarizes the determinative issue in the case as follows: “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.” Finding that the beneficiary did not meet this part of the test, the Associate Commissioner explained, “It cannot suffice to state that the alien possesses useful skills, or a "unique background" . . . regardless of the alien's particular experience or skills, even assuming they are unique, the benefit the alien's skills or background will provide to the United States must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.”

Qualifying for a National Interest Waiver

The occupations that qualify for a National Interest Waiver are not defined by statute. However, each of the three prongs mentioned above must be met to qualify for a NIW.

Work in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the US. Research in any scientific field, for example, can be said to have substantial intrinsic merit to the national interest of the US. Likewise, a sociologist studying demographic trends relating to the 2010 US Census can argue that she seeks work in an area of substantial intrinsic merit; or an educational policy expert can show that his field has substantial intrinsic merit due to its capacity to improve society through education. These are just a few examples; this criterion is not hard to meet.

The second prong, that the applicant’s work, if successful, benefits the US nationally in scope, means that an applicant’s work cannot have merely a limited regional impact. An applicant who has published their research can always show that their work has a national scope since academic publications are disseminated nationally and internationally. In the absence of publications, an applicant can show that the impact of their work is national in scope; for example, a petroleum engineer can argue that her work impacts the entire U.S. in terms of energy supply and refinery safety.

The third prong is the toughest to meet, namely that the National Interest would be adversely affected if a Labor Certification were required for the alien. USCIS interprets this to mean that the benefit of an applicant’s work to the U.S. is so great as to outweigh the nation's inherent interest in protecting U.S. workers by requiring aliens to undergo the Labor Certification process. This is further discussed below.

How to Successfully Meet the 3rd Prong for NIW Petitions

• The alien must submit evidence to establish that he/she has a past (as opposed to projected) record of specific prior achievement in the field. It is this record of past achievement that USCIS believes is what justifies projections of future benefit to the national interest. This criterion can be met through tangible achievements such as publications and research achievements, the significance of which is brought out through objective criteria such as numbers of first-authored publications and independent citations as well as subjective criteria such as testimony by independent recommenders.
• The alien must also establish, in some capacity, their ability to serve the national interest to a substantially greater extent than the majority of the alien’s professional peers. This criterion is largely brought out through testimony by recommenders drawing from evidence of specific prior achievements.
• The alien must demonstrate, to some degree, their influence on their field of employment as a whole. This is shown through objective criteria such as citations, downloads, and commercialization of patents as well as testimony by recommenders.

Lessons Drawn from USCIS/AAO Decisions

The overarching conclusion is that specifics matter, and each aspect of the case should be carefully managed to best fit the NYSDOT criteria. A strong case can be denied because of careless presentation of evidence by an attorney or self-petitioner. Take the example below of how an otherwise possibly winnable case was ultimately denied by USCIS and, upon appeal, by the AAO last year.

In this case, the petitioner-beneficiary was a postdoctoral research scholar at the University of Iowa. He subsequently began working at the National Institute of Mental Health (NIMH). Both of these positions to a layperson indicate the beneficiary’s abilities and work in the national interest. However, the case presented to USCIS had several fatal flaws. His lawyer stated to USCIS that "Due to his expertise and exceptional ability in the field . . . he has commanded a salary equal to his level of knowledge," while in actuality he was making a very modest salary. Seven items were listed under publications on the petitioner’s CV, when only two were published. Of the numerous letters of recommendation submitted, the drafting lacked credibility. A Senior Scientific Officer at a pharmaceutical company in India wrote that the petitioner was one of the best Teaching Assistants in his graduate studies in the department of chemistry at the University of Akron, with clearly no credible basis to make that assessment. Furthermore, the AAO noted, the recommendation letters contained highly technical descriptions of the petitioner's work, but did not answer the question of how, exactly, the petitioner's work has advanced knowledge or produced new practical applications.

Thus we see from the above example that meeting the NIW criteria requires careful preparation and planning to effectively meet the NYSDOT criteria.

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