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Test of NYSDOT Third Prong for EB2-National Interest Waiver Petition

Hi William:

I recently received a Request For Evidence for my NIW application, with the question of NYSDOT third prong of "whether a foreign national’s work benefits the national interest so much as to outweigh the competing interest in preserving the labor certification process." How could I understand and reply this request in my RFE response.


The RFE process creates the opportunity for an alien applicant to emphasize evidence already in the record that the USCIS adjudicator may not have fully considered, to clear up misunderstandings, and to clarify issues and facts. The RFE also give an opportunity for alien applicants to provide additional evidence through the RFE process.

The NYSDOT third prong of EB2-National Interest Waiver petition is difficult to satisfy in light of the USCIS bias toward the Labor Certification process. For this test, the alien applicant needs to prove that the alien’s work benefits the national interest so much as to outweigh the competing interest in preserving the labor certification process in that case. Undoubtedly this test would take into account many factors, most of which would be difficult to objectively measure or quantify.

On the one hand, a researcher who develops a vaccine for HIV would probably outweigh the interest in preserving the job for a minimally qualified U.S. researcher who did not make this discovery. Here, strong testimonial letters are key to a successful RFE response. USCIS requires that a foreign national must present national benefits so great as to outweigh the national interest in preserving U.S. jobs for U.S. workers through the Labor Certification process.

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