|
National Interest Waivers
Click for a Printable Version of this Article
By Stephen Yale-Loehr and Sean Koehler I. Introduction In 1998 the Immigration and Naturalization Service (INS) published a precedent decision restricting the use of national interest waivers (NIWs) as a way to bypass labor certification for individuals in the EB-2 immigrant visa category. This article summarizes Matter of N.Y. State Department of Transportation (NYSDOT) and surveys its impact on NIWs by reviewing recent Administrative Appeals Office (AAO) cases in this area. II. Matter of NYSDOT The facts of NYSDOT were as follows. The New York State Department of Transportation filed an immigrant visa petition on behalf of a civil engineer who specialized in pre-stressed concrete construction and design of bridges, particularly curved bridges. The employer believed the foreign national employee qualified for an NIW. He held a Master of Science degree in Civil Engineering from Iowa State University. He had been employed by the NYSDOT for approximately five years by the time the INS considered the NIW on appeal. His job functions as a civil engineer were to work on rehabilitating, replacing, maintaining, and inspecting bridges. His expertise was in pre-stressed concrete construction and design of post-tensioning and curved bridges. The employer presented evidence that 60% of New York’s bridges contained bearings susceptible to earthquake damage. The employee worked on seismic analysis of these bridges. Improving the seismic resistance of bridges, especially because of recent earthquakes, was important to the nation’s transportation. The employer also pointed to a national shortage of engineers with experience in curved bridges. Finally, the employer noted that 32% of all bridges in the United States are deficient in some way and the country needs expert engineers with experience in structural rehabilitation. The testimony from numerous witnesses focusing on the critical state of the bridges and infrastructure in New York and the United States, while important to commuters and tourists, did not sway the INS. The INS noted that the issue was not whether proper bridge maintenance is in the national interest, but whether this particular foreign national plays a significant role in preserving and constructing bridges, as compared to U.S. workers with the same minimum qualifications. In NYSDOT the INS set forth a new three-part test that foreign nationals must satisfy to obtain an NIW. Generally speaking, the first test is the easiest to meet, and the third test is most difficult. To satisfy the NIW threshold, the petition must show that:
The INS held in NYSDOT that the foreign national employee’s work was in an area of substantial intrinsic merit. Further, the proposed benefit of such work was national in scope. However, the INS held that the NYSDOT failed to establish that the civil engineer would serve the national interest to a substantially greater degree than that of his U.S. citizen colleagues. The INS’s decision evidences a belief that the labor certification process requirement, which purports to protect U.S. jobs for U.S. workers, should be bypassed in only rare instances. Based on this precedent decision, NIW approvals have slowed down. However, based on an analysis of NIW cases at the AAO level, we conclude that we have not seen the end of the road for NIWs. We next discuss each prong’s requisite proof in light of the NYSDOT standards and the new AAO decisions. III. Dissection of the Requirements of Each NYSDOT Prong A. Substantial Intrinsic Merit The engineering of bridges possesses substantial intrinsic merit. NYSDOT states that “the importance of bridges, and their proper maintenance, is immediately apparent.” If the construction and maintenance of bridges possesses substantial intrinsic merit, many occupations will be similarly deemed to possess substantial intrinsic merit. For example, the INS held that a researcher who studied the dispersal of iodine in the environment possessed substantial intrinsic merit. Similarly, a programmer/analyst who developed a software management system for government health care management systems was also found to satisfy the first prong of the NYSDOT test. Furthermore, the inventor of a lightweight luge sled, whose work included building and manufacturing these objects, possessed substantial intrinsic merit. Finally, the work of a vice- president at a lead acid battery recycling company was also found to meet this standard. In fact, of all the post-NYSDOT cases we have reviewed at the appeals level, the immigration agency held in every case that the work involved substantial intrinsic merit. This leads us to surmise: what sort of work would lack such merit? Perhaps a general manager of an adult bookstore and exotic dance facility wouldn’t muster enough intrinsic merit. By and large, however, most occupations possess merit that will pass this prong of the NYSDOT test. B. Proposed Benefit Must be National In Scope For foreign nationals in many occupations, this test is also relatively easy to meet. Whatever work the foreign national is engaged in must have some kind of nationwide distribution or impact. Much like the constitutional reference to Congress’ control over “interstate commerce,” this standard has been very broadly constructed. In the case of a medical researcher, this criteria may be satisfied by showing that his or her work has been published in academic or clinical journals reaching a nationwide audience of physicians and hospitals. In the case of a general manufacturing manager, this criteria may be satisfied by showing that the manager has responsibility for the success of numerous manufacturing sites, and by deliberate implication an economic impact in multiple states all across the nation. Even the civil engineer working for NYSDOT met this test. The INS held that New York’s bridges and roads connect the state to the national transportation system, and that maintaining them properly served interests well beyond the state’s borders. In satisfying this factor, petitioners should heavily rely on the testimony of credible and distinguished witnesses and any objective evidence that the foreign national’s work will have a wide-ranging impact on the field in general. Many cases have met the criteria of the foreign national’s work being national in scope. For example, the INS held that a flutter engineer’s work (“flutter” is an aerodynamic phenomena) was national in scope due to his work’s impact on Boeing, a world leader in the aerospace industry. Another NIW petition for a chemist and senior research and development advisor at a corporation showed that the foreign national’s employment allowed the company to dominate the world market for their particular product. A notable caveat to this is that a foreign national’s work should not harm other regions. In NYSDOT, the INS noted that nothing in the record indicated that the proper maintenance of transportation infrastructure would have an adverse impact on the interests of other regions. For example, building a power plant on the Columbia River that negatively impacts fish migration and would likely harm Pacific states fisheries would probably not satisfy this criteria. While many occupations will likely satisfy this prong, some will not. The INS pointed out in a footnote in NYSDOT that while the national interest is served by both lawyers providing pro bono services and schoolteachers teaching children, the impact of their work would be so “attenuated at the national level as to be negligible” for NIW purposes. This assertion is quite disturbing. As pointed out in one article, “the teaching disciplines pioneered by a grade-school teacher, like Maria Montessori, could revolutionize U.S. pedagogy.” Similarly, a doctor treating patients in a rural community can help remedy the nationwide shortage of health professionals in medically underserved areas. The idea that local work, no matter how important where it is carried out, cannot satisfy the requirements for an NIW eliminates many helping professionals’ eligibility. Social workers, teachers, nurses, and others whose work is localized in nature will be hard pressed to show how they impact the national interest. Some NIW cases at the appeals level have failed the second prong. The INS held that a “scholar of oriental sports medicine,” whose publications and work only helped the Korean community in a certain geographic area, did not make contributions on the national level. The INS held that if this foreign national had made any major scientific advances, they would not remain within one individual ethnic community. An educational program coordinator who specialized in Tibetan performing arts also failed this test. He argued that his work would preserve Tibetan performing arts, but the INS countered that his students would be mainly members of the Tibetan exile community in the United States. The Service argued that the preservation of culture alone was not national in scope if it was not widely available. Another foreign national whose work was not found to be national in scope was the aforementioned inventor of a lightweight luge sled. Though he asserted that it would open up the sport of luge to the average consumer, the foreign national did not show how his invention had made any notable economic impact. For example, it had not been picked up by ski resorts or gone into mainstream winter sports. It must also be noted that a petitioner’s positive effect on the national economy has achieved mixed results at the AAO level. In one case, the petitioner argued that her work directly supported over 200 jobs and had a notable impact on the U.S. trade deficit. She produced independent evaluations to prove this assertion. The AAO accepted her contention, but noted that working in the export business alone would not be accepted as prima facie evidence of a national impact. In another case the AAO rejected the argument that a positive impact on the economy constitutes a national impact. This petitioner, who produced capacitors, argued that his international sales would exceed $25 million, but he failed to produce convincing evidence to that effect. It can be assumed, however, that any export business would positively affect the trade deficit. Unfortunately, there has not been any decision defining how significant an impact a business must have to constitute a national benefit. The issue of economic benefit will continue to trouble NIW adjudications, as economics does not respect the semantic distinction between “local” and “national” that the INS created. C. The Foreign National’s Work Must Serve the National Interest to a The final NYSDOT test is specific to the foreign national. Most of the recent immigration agency appeal cases note that although an NIW hinges on prospective national benefit, the petitioner must clearly establish that the foreign national’s past record justifies projections of future benefit to the national interest. Thus, the foreign national’s past track record in the field must be strong and distinguished. Many NIW cases flounder on this requirement. The immigration agency has required a comparative rather than an absolute standard for this third test. The foreign national must examine others in the field and assess whether or not he or she can be deemed to be substantially better in some way than many of those working in the field. The foreign national must show that he or she presents a national benefit that is substantially greater than his or her U.S. citizen colleagues in the same field. This can be difficult for foreign nationals who are not immediately recognized as leaders in their fields. This is particularly true for recent master’s graduates or doctoral students. This final test stymied the NIW petition for the foreign civil engineer in NYSDOT. Although finding that the engineer provided valuable services to the NYSDOT in maintaining New York's highways, the INS held that he was not influential enough in his field to benefit the national interest to a greater degree than qualified U.S. workers who were available to play a similar role. For example, although he was trained in a certain new technological method, he was not responsible for creating it. NYSDOT also drove the nails in the coffin of “labor shortage” arguments. Arguments that a foreign national’s employment is necessary to satisfy a labor shortage no longer prevail. NYSDOT states that the labor certification process is designed precisely to address an apparent labor shortage. If a labor shortage really exists, no U.S. available and qualified workers will be found and the labor certification will prevail. NYSDOT states that the labor certification requirement “exists because protecting the job opportunities of U.S. workers having the same objective qualifications as a foreign national seeking employment is in the national interest. A foreign national seeking an exemption from this process must present a national benefit so great as to outweigh the national interest in the labor certification process.” The third NYSDOT prong is difficult to satisfy in light of the immigration agency’s bias toward the labor certification process. How can anyone create a formula for determining whether a foreign national’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 formula would take into account a myriad of 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. AIDS researcher who did not make this discovery. On the other extreme is a foreign vacuum cleaner sales representative without any special business credentials who seeks to take a job that a dozen other U.S. available and qualified vacuum cleaner sales representatives could do. How could we possibly rate all of the situations in between these two cases? Some positive news is the fact that, at least at the appeals level, the immigration agency has tacitly recognized that this balancing act is unworkable. Nearly every AAO case we reviewed at this level ignored the proposition that a foreign national must present a national benefit so great as to outweigh the national interest in preserving U.S. jobs for U.S. workers through the labor certification process. However, one of the lessons of NYSDOT is that employers and self-petitioners should no longer tout the uniqueness of the foreign national’s skills or the difficulty in finding workers with such skills as evidence for justifying a national interest waiver. According to the immigration agency, such cases should go through the labor certification process, not an NIW. Not all foreign nationals are eligible for the labor certification process, however. For example, Labor Department regulations and case law establish that labor certification is not possible for employees who have gained experience while on the job, or who own their own business. One approved NIW case lends some legitimacy to the argument that an NIW should be approved if the foreign national is unable to undergo a labor certification. An independent consultant who helped to reduce adverse environmental effects received an NIW. The INS stated that “while not dispositive, this is certainly one factor [inability to undergo a labor certification] taken into consideration in this matter.” The AAO has also cautioned that owning a business is not by itself sufficient evidence to receive an NIW. The decision did not explicitly state why some business owners would receive an NIW and others would not. Nor did it identify any viable immigration alternatives for a business owner who is denied an NIW. It seems that in the case of the business owner, the third prong is somewhat irrelevant. The petition becomes wholly dependent upon satisfying the “national in scope” test. A business owner must demonstrate, through unbiased documentation, that his or her work has a substantial impact on the economy. In this case, the petitioner would force the immigration agency to choose between granting the NIW and negatively impacting the economy. Beyond the comparative examination of assessing whether a foreign national is substantially better than the bulk of his or her peers, NYSDOT also requires that the benefit of a foreign national’s work “must greatly exceed the achievements and significant contributions” that a foreign national must have to establish exceptional ability for the EB-2 immigrant visa category. In fact, we have concluded that the third prong of the NYSDOT test has grown close to the “extraordinary ability” standards required for EB-1-1 extraordinary ability foreign nationals. As background, to qualify for the EB-1-1 extraordinary ability immigrant visa category, the foreign national must be one of those few individuals who have risen to the very top of their fields. A foreign national must show sustained international or national acclaim by satisfying at least three of ten specified criteria. These criteria include, among others: (1) receipt of national or international awards; (2) membership in organizations requiring excellence of their members; (3) published material about the foreign national in major trade publications or other major media; (4) citations to the foreign national’s work or published material about the foreign national; (5) evidence of scientific or scholarly contributions to the field by the foreign national; (6) publications authored by the foreign national in academic or industry publications; and (7) that the foreign national plays a leading role for organizations with distinguished reputations. Foreign nationals seeking NIWs who have to their credit publications, patents, awards, and other criteria such as those mentioned are more likely to satisfy the third prong of the NYSDOT standard. These items generally show that the foreign national will serve the national interest to a substantially greater degree than minimally qualified U.S. citizen colleagues, since the minimally qualified peers will not have won awards, been asked to review other’s work, publish, etc. The third prong of NYSDOT is not identical, however, with the EB-1-1 standards. In recent NIW decisions the AAO has admonished the Vermont Service Center (VSC) for holding NIW petitioners to the “extraordinary ability” standards. In one case, the VSC impugned the significance of the petitioner’s accomplishments, noting that he had no evidence of “national/ international awards and publications in major media such as newspapers and television.” In another case, the VSC again demanded mention of the foreign national in major media. In each case, the VSC rejection used the exact language of the EB-1-1 extraordinary ability standards. The AAO rejected the VSC’s reasoning in both cases, noting that satisfaction of extraordinary ability standards is not required for an NIW. However, as the VSC’s arguments demonstrate, satisfaction of the higher standards is a sure way of satisfying the third prong of the NYSDOT test. Successful NIW cases are not limited to those foreign nationals who have risen to the very top of their field. Presenting materials in support of the petition that frame the case in the most favorable light will aid its passage. For example, it is important that the petitioner construe the foreign national’s field as narrowly as is possible while maintaining credibility. For example, a computer scientist with expertise in testing for and fixing fatal errors in the operating systems that control nuclear reactors should not be compared with all other computer scientists, but rather with the relatively small group of professionals who have distinguished themselves in this subspecialty. The supporting documents should not refer to this foreign national as a computer scientist, but rather as a nuclear reactor software engineer. By narrowing the frame of reference, the foreign national will be compared to a much smaller set of U.S. peers. NYSDOT also seems to leave open one other avenue for foreign nationals to receive NIW approval and bypass the labor certification process. The decision noted that “[t]he petitioner has not shown that it will suffer a substantial disruption in its efforts to maintain New York’s bridges and roads if a national interest waiver is not granted and the petitioner is required to test the U.S. labor market through the labor certification process.” While this avenue is yet unproven, arguably it is possible for employers to claim that a foreign national is so important to their business that a substantial disruption will occur if the lengthy labor certification process must be followed. For example, one of our clients is currently in danger of losing substantial government and private contracts if the employer is unable to retain a Cantonese linguist with expertise in speech-to-text computer synthesis. While this case has not yet been adjudicated, it would seem that this substantial disruption to petitioner’s business might be a factor in its approval. Employers that can show a potentially large negative consequence if the foreign national were to leave employment might prevail in an NIW. Would a large government contract be lost without a key scientist? Would a new production line be canceled or delayed without a critical industrial engineer? Does a foreign national need to possess permanent residency status to gain government security clearance to work on a highly sensitive defense project? Would great financial harm come to the business if the foreign national’s expertise were denied? All of these factors may bolster an NIW case. This factor in the approval of the NIW elucidates an important issue. The statute states that the Attorney General may waive the labor certification requirement in the national interest. In most cases, it is difficult to imagine why the labor certification process would be contrary to the national interest. One such case may be the nuclear reactor software scientist, whose work is time sensitive and could not await the laborious process. In general, however, the danger that the labor certification process presents to the national interest is that it may find an ostensibly qualified U.S. worker. That is to say, the labor certification process may harm the United States because it does exactly what Congress designed it to do, replace foreign nationals with U.S. citizens. In many cases, a particular foreign national is better suited to perform a given task than any citizen or permanent resident of the United States, despite the equality of measurable qualifications such as level of education or years of experience. The NIW category recognizes that the standards imposed by the statutory language do not allow for this reality. Some AAO decisions have satisfied the tough third test of NYSDOT. For example, the aforementioned senior research and development advisor at a chemical corporation showed that his proven track record of achievement was evidence of the likelihood of his having a greater impact in the future. The foreign national had twenty years of experience, several approved patents, and other demonstrable achievements showing that he can be expected to make significant contributions, outweighing those of his peers, in an area of importance. Similarly, the research assistant who studied the effects of iodine in the environment also passed this test. He showed that he had received multiple awards for his work in China and research accomplishments that were not limited to his doctoral research, but which spanned his career and predated his doctoral studies. A foreign national with a degree in environmental management who had been credited with reducing pollution also passed this test. IV. Satisfying All Three Prongs For a national interest waiver to succeed, a foreign national’s work must involve an activity of substantial intrinsic merit. This test is relatively easy to apply, and many good immigration attorneys can draw a successful causal argument relating the beneficiary’s activities to the level of possessing intrinsic merit. Furthermore, the benefits of the activity must be national in scope. Again, this test is easily surmountable by foreign nationals in many occupations. The third test is the most difficult. Deciding whether the individual is at the top level in his or her 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 highest 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. NYSDOT never comparatively weighed each test. Some hopeful observers have suggested that a foreign national whose work is very strong in the “substantial intrinsic merit” category may prevail despite weak evidence in the “national in scope” category. A social worker or an advocate for battered women might fall into this description, for instance. However, there has been no evidence that the immigration agency deems any one of the three tests to be more important than the others. Rather, the foreign national must meet a nebulous minimum threshold on each standard. A social worker, no matter how many abused children she might have saved, will not prevail unless she shows that her work impacts the national interest to a substantially greater degree than other U.S. social workers. Some attorneys have noticed a slight difference between foreign nationals who have self-sponsored their own petitions versus foreign nationals who are sponsored by their companies. Generally speaking, if the foreign national’s employer has a distinguished reputation in the field, it is preferable to have the company or organization act as the petitioner. Strong testimonial letters are key to a successful NIW case. A foreign national should obtain strong letters from both the foreign national’s “inner circle” and “outer circle” of peers. The foreign national’s inner circle includes those he or she has directly worked with either in academia or in business. While these letters are often the most glowing, they are also the most suspect since they are possibly biased. A foreign national and his or her manager should be able to identify the outer circle of people who may recommend the foreign national. This includes people/organizations that are familiar with the foreign national’s work but may have not met the foreign national. If they have contracts or have a professional relationship with the foreign national’s employer in some regard, the foreign national’s manager/employer may be able to intercede on the foreign national’s behalf and get a letter of recommendation from them. Think tanks, government agencies, and university professors are the more prestigious letter writers. In one approved case, the AAO appeared to give considerable weight to the fact that the foreign national had independent witnesses attesting to the importance of her past work. Several innovative practitioners have introduced a useful tool. Most scholarly journals put all articles through a peer review process before publication. Many of these journals maintain manuscripts from the peer review process. Peer review manuscripts represent the opinions of unbiased, anonymous observers of the author’s research. If they comment favorably on the author’s work, they are convincing evidence of the petitioner’s accomplishments. In two recent cases, the AAO was persuaded by peer review manuscripts. If a petitioner fails to produce letters from members of the field who do not know him or her, other methods of demonstrating national recognition are possible. Again, these methods refer back to the EB-1-1 “extraordinary ability” standards. Petitioners should submit articles they have published in noteworthy trade publications. The AAO has also been persuaded by petitioners who show that their work has been cited internationally. Finally, the fact that all the referees in a given petition are personally acquainted with the petitioner can be overcome by the notability of the referees. In one case, the AAO ignored the acquaintance of the referees with the petitioner since all the referees were researchers at Johns Hopkins, one of the world’s leading medical research institutions. Finally, employers should think about their long-term goals and not file an NIW for a foreign national who hasn’t yet proven that he or she is worthy under the new more stringent standards. A foreign national can be groomed to fit the NIW standards. Let a new employee know about steps he or she can take that will strengthen an eventual NIW petition. For example, many activities are career enhancing, such as networking, joining professional organizations, volunteering to participate on prestigious committees, serving on editorial boards, reviewing theses and publications, and determining who is citing or referring to the foreign national’s body of work. These will bolster an NIW case and lead to the final goal: permanent residency for key employees. The marked shift in the immigration agency's attitude toward NIWs has caused noticeable confusion and inconsistency in adjudications. For example, the AAO denied an NIW for an engineer at Sony despite his remarkable accumulation of patents. The AAO argued that patents were too common among research engineers to establish an ability significantly above that of his U.S. counterparts. This argument seems flawed in light of the fact that Sony testified that this particular engineer had produced enough patents to put him in the top 1% of research engineers in their corporation. Another petitioner, an international financial consulting firm, argued that an unfavorable immigration ruling would severely impede the company’s profitability. The AAO, however, found that the petitioner failed to show the beneficiary possessed more than a “level of training or education which could be articulated on an application for a labor certification.” The AAO acknowledged that the labor certification process often fails to consider factors of qualification apart from those that are purely quantifiable. This is an important factor for practitioners to note. The AAO believes it crucial when applying for an NIW to show why the labor certification requirement would falsely assess the qualifications of the candidate. Generally, AAO decisions since NYSDOT have stressed that the national interest waiver was created only for cases in which the national interest would be undermined by the labor certification process itself, not for cases involving particularly qualified candidates. Of twenty AAO decisions we recently reviewed, only one granted the NIW application. In this case, the decision made no mention of why this particular foreign national, a radiology researcher, should not be subject to the labor certification process, or why the labor certification process would harm the United States. Instead, it simply focused on her qualities as a researcher. Therefore, despite the AAO’s insistence that the crux of an NIW case is the labor certification requirement, it is truly the ability of the candidate that seems to justify an NIW. V. National Interest Waiver Case For a Food Technologist - A Case Study A recent client of ours, a food technologist with expertise in the development of low-fat foods, obtained an NIW based on his work at a Fortune 500 food and beverage company and a track record of achievement. While it is not immediately obvious that developing low-fat coffee beverages is in the national interest of the United States, we developed a series of arguments that persuaded the immigration agency to grant the NIW. The developer of the low-fat coffee beverage held two degrees: a master’s in food science and a bachelor’s in chemical engineering. Our argument roughly followed this progression: A. Food technologists’ work in developing low-fat foods is very important Under this argument, we presented information from the National Institutes of Health showing that obesity has been shown to either increase the risk for, or exacerbate such conditions as, hypertension, lipid disorders, diabetes, coronary heart disease, stroke, gallbladder disease, sleep apnea, respiratory problems, osteoarthritis, and certain types of cancers. We also showed that these and other obesity-related diseases cost nearly $100 billion per year. We also showed that the government recently released new “Federal Obesity Clinical Guidelines,” endorsed by major medical associations throughout the United States, to treat obesity. In addition to the federal interest in low-fat foods, we showed that the U.S. consumer is interested in the further development of low-fat food choices. We presented a letter from the Calorie Control Council, an international association that represents the low-calorie and reduced-fat food and beverage industry. The letter attested to the national significance of lower fat foods. Furthermore, the letters of recommendation, including one from the president of a leading U.S. contract R&D organization that develops food products, attested to the fact that consumers’ demand for reduced and low-fat food product development is strong. B. The food technologist’s work will also benefit the national economy We also showed how new low-fat food products, derived from innovations in health and food-processing technologies, benefited the national economy. Such low- and reduced-fat products represented a significant market in the food industry in the United States. The food technologist, through his past endeavors at a private research and development lab, and his current work at one of the largest U.S. beverage companies, played a critical role in developing such foods and thereby directly benefited the national economy. We included numerous magazine and newspaper articles about one of the products he played a role in developing. These articles showed that the industry was a multi-million dollar per year industry, and that this new product was credited with opening up an entirely new market share. These articles came from Supermarket News, The Hartford Courant, and Food Processing Magazine. We even included a transcript of a Cable News Network (CNN) broadcast where a market analyst commented on the company’s growth potential. One article called the product one of the top ten new products of the year it was introduced. It had over 80% of the market share in its segment, and was responsible for almost $100 million in sales. Quite importantly, the product was hailed in its company’s annual report as part of its growth strategy of investing in “big opportunities,” and this company is a $10 billion company. These first two arguments, directly relating the development of this product to the nation’s health concerns and the U.S. economy, satisfied the criteria that the foreign national’s work was of “substantial intrinsic merit” and national in scope. Since these products were distributed and marketed nationally, their impact was national. But the final standard, that the beneficiary’s work will impact the national interest to a substantially greater degree than the work of his U.S. citizen colleagues, still had to be surmounted. C. The food technologist will impact the field as a whole to a substantially Here we showed that the beneficiary had a past record that justifies the future projections of benefit to the nation. The food technologist in this case had a proven track record of developing successful low fat products. He had developed powered ready-to-drink weight loss products for a leading diet supplement company, a low-fat ice cream for an ice cream maker, and a reduced-fat peanut butter spread for a food-service company. His most recent endeavor was the low-fat coffee drink product that had garnered huge success. Also important to establishing the food technologist’s benefit to the field were letters of recommendation from academics, private research labs, and the Fortune 500 company. All concluded that this food technologist had a special talent in developing and processing low- and reduced-fat foods. He also had recognizable expertise with numerous fat-replacement systems as well as heat preservation technologies, and shelf-life stability analyses. This food technologist now has an immigrant visa. As the case shows, NIWs have become more difficult to obtain, but they are still possible for individuals with a strong record of achievement in their field. VI. Conclusion The NIW, once a means to gain immigrant visas for both flying acrobats and flight engineers, is now much more difficult to obtain. While the immigration agency has changed direction in its adjudications, NIWs are still possible for individuals who play critical roles at their companies and have a proven track record of achievement, showing that they are significantly better in their field than their U.S. citizen counterparts. We believe that NYSDOT will stop frivolous NIW cases from being filed. But truly deserving cases, such as engineers working on important technologies and medical professionals doing cutting-edge research, should still be able to obtain NIWs. NYSDOT marks a bend in the road, not the end of the road, for NIWs.
|