This entry is a follow up to the last one on National Interest Waiver (NIW) cases. I want to focus on the troublesome NYSDOT (NY State Dep’t of Transportation – landmark case that re-defined how we file NIW cases) Third Prong that is an issue for all clients. It is the hardest one to prove.
Historically, this third prong (i.e., proving why hiring you – the foreign scientist – outweighs hiring a minimally qualified American or undergoing the Labor Certification process) is not in the NIW regulations. See: Immigration Act of 1990 (IMMACT90). There are some positions, which, by definition, require the best worker and not someone with minimum qualifications. For this reason, the NIW category was actually set up as one alternative to filing a traditional labor certification case with U.S. Department of Labor.
After NYSDOT, we must now actually prove that a labor certification (or labor cert.) is not feasible or appropriate. The expert testimonials are immensely useful and should clearly state why the labor cert. process cannot work in your particular case. Here are some pointers on how to do just that:
(1) Attack the third prong as if you had to prove yourself to be Extraordinary or Outstanding and demonstrate your unique qualifications, experience, remarkable skill set, singular expertise in cutting edge technology, rare talents, etc. Notice that implicit in this is a comparison between you and your peers in the same field. You need to prove why you are “substantially better” than your peers. For example, in distinguishing oneself from one’s peers, focus on national/international awards/honors, published material about your work, citations to your journal publications, how you have judged the work of your peers, etc. There is an ongoing frustration now among immigration practitioners that the NYSDOT test uses notoriously circular reasoning and added new law that heretofore did not exist.
(2) Define how the U.S. stands to gain prospective national benefits from permanently hiring you by clearly demonstrating your past record of high achievement and significant contributions to the field. Usually, you can do this by explaining what kind of research was performed in prior positions and any national interest that was served. Positions in foreign countries or collaborations with international institutions are very favorable. The past achievements justify similar future achievements.
(3) Understand the concept behind the labor certification process so you can distinguish the NIW case from a labor cert. The labor cert. seeks to locate a minimally qualified able, willing American employee in the same field through a recruitment campaign. If one cannot be found, then the position can be offered to a foreign worker. An NIW petition seeks to avoid this time consuming process.
Some strategic moves to demonstrate to USCIS that the labor cert. process is, in fact, inappropriate to apply to your specific case include:
• Narrowly defining your field to convincingly demonstrate your top achievements. This provides a smaller pool of peers to be compared with.
• If a position is in the national interest, it is usually a complex or advanced level position, so a minimum duties approach simply doesn’t work. Focus on the urgent nature of the work and discuss the complex or unique duties, which require someone who is more than just minimally qualified.
• Be careful not to over-emphasize that a wide recruitment search was conducted by your current employer and a shortage of workers exists. That is exactly why USCIS would tell you to file a labor cert.
• Be sure to clarify if the current employer is a government agency and the position is one of high caliber requiring U.S. permanent residency or citizenship to gain security clearances, background checks, etc.
• Explain if you will be a consultant or are self – employed. The NIW category does not require an employer sponsor; however the labor cert. does require a company sponsor to go forward. As a matter of public policy, some government agencies and even universities cannot file labor cert. applications.
It is possible to overcome this difficult third prong in the ways outlined above and you can be successful. It is important to remain firm and articulate well. Point out to USCIS that the immigration statute only requires you to show what the national interest involved is and how you will advance that. At the same time, find forceful arguments to show why the labor certification process cannot be applied to your case.
Attorney at Law
Comments, suggestions or questions are welcome.
The statements in this blog are my observations based on my experience as an immigration attorney. I do not intend for them to serve as immigration advice to a reader to be relied upon, nor should they be understood or interpreted to form an attorney/client relationship.