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Stricter NIW standards


 


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QUESTION:
What are the new stricter standards for the National Interest Waiver?

 

ANSWER:
In 1998, the INS significantly tightened the standards for national interest waiver-based applications in Matter of New York Department of Transportation (NYDOT). Whereas national interest waiver applications used to be adjudicated on a more lenient case-by-case basis, the NYDOT decision was a significant milestone in a trend toward more scrutiny in the review of these types of applications.  The following issues were highlighted in this decision.

Scope of the foreign nationalís work: It is important that the effect of the foreign nationalís work be felt nationwide. Simply serving a regional locale is not sufficient. However, meeting this requirement is not necessarily difficult as it is possible to demonstrate how an individualís work, although done locally, can serve the interests of other parts of the U.S.  In the NYDOT case, the applicant was an engineer analyzing bridges. The Administrative Appeals Office (AAO) determined that this work was national in scope because the roads and bridges in New York connected to the U.S. transportation system and maintaining these were a benefit to other regions in the U.S.

Employment in an area of significant merit: The national interest waiver applicant must be working in a field that will benefit the entire nation rather than a single geographical region.

National interest versus protecting U.S. workers: The labor certification process is designed to test the labor market to determine if there are any U.S. workers minimally qualified to fill the position held by a foreign national.  The purpose of this process is to protect U.S. workers and grant permanent residency to an alien only in the event that no U.S. minimally qualified worker can be found for the position.

The NYDOT decision now requires a showing that approving an alien for a national interest waiver will provide a significant benefit to the U.S. and considerably outweigh the benefits of the labor certification process.  Unfortunately, there is no checklist against which one can measure whether his accomplishments are substantial enough to meet this demand. However, simply showing that a person possesses unique skills and experience is not likely to be sufficient. Moreover, asserting in a NIW application that there exists tremendous potential for the work that the foreign national is participating in is also insufficient.

The consequence of the NYDOT decision is a larger number of denials of applications that previously would have been approved. As the INS scrutinizes each application more carefully, those who have superb credentials and are making substantial contributions in their field of endeavor are likely to continue to be approved under this category. However, others not similarly situated will need to consider other options to obtaining permanent residency. 

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