The Real NIW Requirements
I. THE REAL NIW REQUIREMENTS
There are the statutory requirements, which are not very clear, and then there are the actual requirements, which are much more useful.
A. The Unclear Statutory NIW Requirements
The statutory requirement for NIW is defined in 8 U.S.C.A. § 1153(b)(2)(B)(i) in merely one paragraph. As written, the statute reads:
[T]he Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
This statute does not give any standard for NIW, and the terms "may" and "deem," grant the Attorney General nearly full discretion on NIW. See Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 2052 (1988).
The only restriction on the discretion is that the U.S. Citizenship and Immigration Services (USCIS) may not act arbitrarily or capriciously. See Chevron USA, Inc. v. National Resources Defense Council, 467 U.S. 837, 842-43 & n. 9 (1994).
B. The Real NIW Requirements
Though court cases and Administrative Appeals, Kenzl Law Offices have identified the real NIW requirements. NIW has 3 main criteria, and they originate from an important court case called In Re New York Department of Transportation, Interim Decision 3363 (AAO 1998) (hereafter known as “NYDOT”). In the following sections, these 3 criteria are discussed.
1. First criterion, the proposed employment must be in an area of substantial intrinsic merit
The first criterion requires that the proposed employment be in an area of substantial intrinsic merit. Substantial intrinsic merit means the employment benefits the U.S. national economy, culture, education or welfare in a meaningful manner.
Generally speaking, each employment has a range of intrinsic merit. However, selecting the correct intrinsic merit will make the rest of the petition easier to write. Thus, it is important to strategically choose the best national area, even if that area is not readily apparent at first.
A common mistake that many clients make is to focus on the substantial intrinsic merit of the field rather than the substantial intrinsic merit of their own labor. USCIS will punish a petition harshly if the proposed employment is not correctly explained.
2. Second criterion, the benefit of the proposed employment must be national in scope
The second criterion requires that the benefit from the proposed employment be national in scope, or else benefit a national goal. To be national in scope, USCIS generally requires that the employment must benefit at least 2 states. This is because USCIS has officially stated that a benefit limited to a regional, local, or private interest is not national in scope. See Matter of _, EAC 98 042 50606 (8/18/98).
Some legal writers believe that the second criterion is similar to the "interstate commerce" concept. See Austin T. Fragomen, Jr., Alfred J. Del Rey, Jr., & Sam Bernsen, Immigration Law and Business § 3:41 (West, 2004). Under this interpretation, almost any economic activity tied to the economy of more than one state is at least partially of national interest.
As for what may be national goal, USCIS has no official statement on this. Thus, this opens up the petition to many possibilities. In general, Kenzl Law Offices use past cases to infer what may be a sufficient national goal. Not all national goals are equal and so to make the proper choice is a must. The proper fulfillment second criterion sets the stage for the rest of the petition. If used correctly, this is an additional opportunity to reinforce the first criterion of substantial intrinsic merit.
3. Third criterion, the Benefit from the Employment Must be Considerably Greater Than the National Interest in Protecting U.S. Workers through the Labor Certification Process
The third criterion is the most difficult criterion because the standard is subjective and the list of things to prove is long. For this criterion, you must prove to the USCIS’ satisfaction that the benefit from your employment is considerably greater than the national interest in protecting U.S. workers through the Labor Certification Process.
To prove this third criterion, our law offices will use every mean possible to demonstrate that the national interest is greater when our client is put to use in the proposed employment. To write this section of the petition well, there must be a deep understanding of your employment and how it relates to the national interest.