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New York State Department of Transportation's NIW Application Case Analysis

1. NYSDOT - An Important Case on National Interest Waivers

On August 7, 1998, the USCIS (then INS) issued a precedent decision (Matter of New York State Department of Transportation, or NYSDOT) clarifying raising the standard for applicants in this category. Since the passage of the Immigration Act of 1990 (IMMACT), the INS has been flexible in adjudicating NIW petitions. Each NIW case was decided on its own merits. There was no clear definition of what "national interest" was.

 According to the NYSDOT decision, an applicant must meet the following three tests:

1. Applicant's prospective employment must be in an area of "substantial intrinsic merit."  However, the INS emphasized here that eligibility for the NIW "is not established solely by a showing that the beneficiary's field of endeavor has intrinsic merit."

2. The proposed benefit must be national in scope.

3. Petitioner must show that "the national interest would be adversely affected if a labor certification were required for the alien."  That is, "the petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien."

Prior to articulating the above, the INS had suggested that the following 7 factors may be influential in determining whether an applicant's work was in the national interest:  

(1) improving the U.S. economy; 

(2) improving wages and/or working conditions of U.S. workers; 

(3) improving education and training programs for U.S. children and/or under-qualified workers; 

(4) improving health care in the U.S.; 

(5) creating more affordable housing for low income residents of the U.S.; 

(6) improving the environment and/or conserving natural resources; or 

(7) working on behalf of a U.S. government agency

2. Background Issues and Analysis

NIW has been very popular since its existence. It has been an option for those who qualify and do not wish to undergo the tedious and time-consuming process of Labor Certification. Perhaps it is because of the sheer volume of applications that were filed, the INS decided to tighten up the liberals standards that were previously in place.

This case involves the New York State Department of Transportation (NYSDOT) having employed a foreign national as a Civil Engineer in 1993. The foreign individual has a Master of Science degree in Civil Engineering from Iowa State University. His expertise, as articulated by the lawyer for NYSDOT, is in "pre-stressed concrete construction and design of post-tensioning and curved bridges." NYSDOT submitted an employment-based immigrant visa petition under the National Interest Waiver provision that was denied by the Vermont Service Center (VSC) in April 1998. This case was subsequently appealed. NYSDOT was unsuccessful in its appeal and the case was dismissed by the Administrative Appeals Unit of INS. This decision will likely have a significant impact on future NIW filings.

The main issue in this case appears to be whether it would be in the "national interest" to exempt a foreign national from having a job offer and requiring the employer to undergo labor certification. The Administrative Appeals Unit in the NYSDOT case repeatedly emphasized on the Labor Certification itself being in the "national interest." Thus, "an alien seeking an exemption from the Labor Certification must present a national benefit so great as to outweigh the national interest inherent in the labor certification process." 

The decision further stated that it is insufficient for the employer or the foreign national to show that there are no available U.S. workers to fill the position that has been offered. After all, it is the very function of the labor certification process. i.e. to test the labor market.

3. Summary Questions in Evaluating Whether One Qualifies for NIW

• Is the alien's offered employment in the area of "substantial intrinsic merit?" i.e. are you going to work in a field of endeavor that has "intrinsic merit?"

In the NYSDOT case, the INS concluded that earthquake engineering of bridges satisfies the test of "substantial intrinsic merits."

• Is the proposed benefit national in scope?

This is where the contradiction comes in. The Administrative Appeals Unit stated that the New York bridges and roads provided for interstate commerce, and therefore, serves the national interests of other areas in the country. However, the Administrative Appeals Unit indicated that the impact of professionals such as attorneys, school teachers or chefs are "so attenuated at the national level as to be negligible." This contradicts earlier opinion that were issued by the Administrative Appeals Unit which opined that small national interest is sufficient even if it indirectly benefited through regional or local action.

• Will the national interest be adversely affect if a Labor Certification were required for the alien?

This last evaluating standard concentrates on the alien. The Administrative Appeals Unit in the NYDOT case stated that the very purpose of the Labor Certification was to protect U.S. workers from being displaced by foreign workers. Therefore, one must convince the INS that national benefit of a LC exemption was "so great as to outweigh the national interest inherent in the labor certification process."

 

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