1.
The Request For Evidence for EB2-National Interest Waiver Petition
Section 203(b)(2) of the
Immigration Act requires that all aliens seeking to qualify as having exceptional ability show that their presence in the United States would substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States, and adds the additional test of "national interest" to those who wish the job offer waiver. Neither Congress nor
USCIS defined the term "national interest" in either the Immigration Act or the regulations in order to leave the application of this test as flexible as possible.
However, an alien seeking to meet the
EB2-National Interest Waiver (NIW)
requirements must show significantly more than just "prospective national benefit" required of all aliens seeking to qualify as having exceptional ability. The burden rests with the petitioner to establish that
the waiver of the job offer requirement will be in the national interest. Each case
will be judged on its own merit.
After the NIW I-140 petition submission, it is not
rare that an alien applicant receives a Request For Evidence (RFE) letter from a USCIS Service
Center. The possibility that a NIW I-140 petition may get RFE changes considerably from one USCIS Service Center to another Service Center.
There are a lot of complaints with reference to the significant USCIS delays in sending out Requests for Evidence. The USCIS presumes that it is in the U.S. national interest for most foreign nationals seeking Green Cards to undergo Labor
Certification process. On the other hand, certain advanced degree professionals or those who are considered "exceptional" and who have demonstrated a significant impact on their
field, may be eligible for the EB1 or National Interest Waiver
(NIW) petition.
Typically, before the USCIS issues a denial in any type of case, it first sends a Request for Evidence (RFE). Receipt of an RFE enables the
alien beneficiary the opportunity to present additional evidence, for a fair and accurate determination. This procedure is in keeping with the purpose of the
NIW - to create an avenue to obtain permanent resident status for an alien who demonstrates that
his or her work will substantially benefit the U.S.
2.
How to Meet the Three-Prong Test Requirements in Your Response of Request For Evidence
The USCIS has issued a precedent decision that restricts the National Interest
Waiver petition. The NIW has helped expedite Green Card application process for many aliens whose work is deemed to be in the "national interest." The national interest waiver method of obtaining a
Green Card was preferable to other avenues in many cases, because it allowed employers to bypass
the Labor Certification process, a long and cumbersome process in which employers must show that there are no U.S. qualified workers for the alien's position.
An
USCIS decision, called Matter of New York State Department of
Transportation (NYSDOT, 1998), held that an individual seeking a national interest waiver must satisfy
the three-prong test:
1)
The alien's work must be in an area of substantial intrinsic merit;
2)
The alien's proposed benefit must be national in scope; and
3)
The alien must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The alien must present a national benefit so great as to justify a waiver of the labor certification process.
Thereafter, the three-prong test related questions are often asked in
many RFEs of NIW petition. The purpose of these prongs is to set minimum requirements for activities that are in the national
interest, not local interest:
a)
the first prong of the NYSDOT test: the alien must seek employment in an area that has substantial intrinsic merit. In NYSDOT
case, the alien was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit. It is obvious that the protection of motorists and the maintenance of a highway system are activities of substantial intrinsic merit.
b)
the second prong of the NYSDOT test: it requires that the waiver applicant demonstrate that the proposed benefit to be provided will be national in scope. There are many activities which have positive effects, such as job creation for a local community, but may in fact have a limited, or even negative, national impact.
c)
the third prong of the NYSDOT test: it must be demonstrated that the national interest would be adversely affected if the employer is required to proceed with the labor certification process. In order to satisfy the third component of the test, therefore, it must be shown "that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making the position sought available to U.S. workers."
In addition, NYSDOT
case further requires, as a condition of meeting the third prong, "that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications." This test recognizes that there can be two competing "national interests" - the national interest, as set forth by Congress in section 212(a)(5) of the INA,
and the national interest of Labor Certification.
Some
“broad brush” RFEs generally asks an alien applicant to prove his or her eligibility for the National Interest Waiver application, according to the three basic criteria setup in the case of
NYSDOT, such as the alien applicant’s working field must has “intrinsic merit”; the benefit of the applicant’s work must be “national in scope”; and the national interest would be adversely affected if a labor certification were required.
3.
Considerations of RFE Response for a National Interest Waiver Petition
During
the RFE replying process, the alien applicants should also bear in mind the following general considerations with respect to
the requests for national interest waivers:
1)
An alien seeking NIW who has publications, patents, awards, reviewing other’s
work, and other achievements are more likely to satisfy the third prong of the NYSDOT standard. These items generally show that the
alien applicant will serve the national interest to a substantially greater degree than minimally qualified U.S. citizen colleagues, since the minimally qualified peers
may not have won
awards or publications, or been asked to review other’s work, etc.
2) An alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education, which could be articulated on an application for a labor certification.
3) General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the U.S., cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic
issue.
4)
While the national interest waiver hinges on prospective national benefit, it clearly must be established that the alien’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the alien has few or no demonstrable achievements.
5)
The basis for the
National Interest Waiver may not be the existence of a local labor shortage. The mere fact that the alien
beneficiary might fill a locally needed position, irrespective of the positive effect of such activity, does not qualify the activity as being in the national interest. While there exists a generalized national interest in providing jobs to all work authorized persons, the national interest waiver is a waiver of the labor certification requirement - it is not a substitute for this requirement. Congress specifically created the labor certification process in order to test the domestic local labor market. A shortage of qualified workers in a given field does not constitute grounds for a national interest waiver.
4.
Suggestions for Preparing RFE Response for a National Interest Waiver Petition
For a
National Interest Waiver to succeed, an alien’s work must involve an activity of substantial intrinsic merit.
This test is relatively easy to apply, and many alien applicants can draw successful arguments relating the
alien’s activities to the level of possessing intrinsic merit. Furthermore, the benefits of the activity must be
national in scope. Again, this test can be easily surmountable by alien applicants in many occupations. The third test is the
difficult one.
Deciding whether
an alien applicant's achievement is highly recognized in a field is considerably harder. The
applicants who can be deemed substantially better than their U.S. citizen peers are also likely to have testimonials from
independent experts at the high level, ideally from officials of government agencies and highly reputable private
companies and organizations in their fields.
NIWs are successful only for foreign nationals who meet all three tests. There has been no evidence that
USCIS deems any one of the three tests to be more important than the others. Rather, an
alien applicant must meet a minimum threshold on each standard. For example,
an alien social worker, no matter how many abused children she might have saved,
may not prevail unless
she shows that her work impacts the national interest to a substantially greater degree than other U.S. social workers.
To
replying the RFE requests, an alien applicant should make sure to include
additional independent letters from experts in the field who have not collaborated directly with the
alien. A combination of
additional letters from experts and collaborators who describe the beneficiary’s reputation in the field, along with a few other letters from independent references who know the beneficiary’s work via their conference presentations or publications, is the best recipe for
RFE success.
USCIS
Service Centers have indicated that the following factors are also used in evaluating an applicant's
RFE response of National Interest Waiver petition:
1) Those seeking qualification for a waiver of labor certification based on services considered in the national interest must
show "prospective national benefit" required of all aliens seeking qualification as exceptional.
The NIW applies only to aliens who will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States.
2) The National Interest Waiver petitions require that the emphasis rest with the overall value and potential of the
alien beneficiary's individual contribution to the U.S., not the fact that they are working in a field of "high national interest." The alien may qualify by being found to be a "key" or "critical" member of a team, if it can be shown that the team function would be severely impaired without this member. Merely working in an area of national interest does not necessitate a finding of national interest qualification.
3) USCIS highly recommends the submission of additional testimonial letters from substantial, recognized national or international organizations/institutes/ government agencies with the expertise to definitely say that the work or contribution of the
alien beneficiary truly is in the national interest. The authors of these
independent testimonial letters should clearly state how they came to be familiar with the alien's work.
5.
Get Help for Your RFE Response, and Eventually Obtain Your Green Card
If
you get a Request For Evidence (RFE) notice for your NIW petition from an
USCIS Service Center, it is necessary that you must work hard to provide
requested evidence in a short time, and persuade the USCIS adjudicators to
approve your case. It is critical to appropriately and proficiently
reply the Request For Evidence. Incorrect response of the RFE will
directly result in your I-140 petition rejection.
To help you replying
the RFE, we provide the high quality and case-proven "Complete
Do-It-Yourself Package of Request For Evidence for EB2-National Interest
Waiver Petition". In the RFE package, we present methods
of analyzing RFE questions, RFE replying strategies, means of
strengthening your case, detailed RFE cases analysis, sample cover
letters, sample reference letters, and more. With the RFE package, you get
all the information you need and step-by-step knowledge and strategies of
how to prepare an efficient, professional, and complete response to your
RFE notice of NIW petition, and eventually get your Green Card.
To further help your
RFE response, we also provide a “Premium Petition Service Program” for
our customers. Please visit http://www.greencardapply.com/general/premium.htm
for more information.
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