Immigration Table of Contents
National Interest Waivers
The NYSDOT Case
After the NYSDOT case was handed down from the Administrative Appeals Office (“AAO”) in 1998, there are now three basic factors that must be considered in a NIW application:
- Area of Substantial Intrinsic Merit;
- Proposed Benefit of National Scope; and
- Proposed Benefit of National Interest.
Substantial Intrinsic Merit
This factor requires that the applicant show that his/her endeavor is related to an important national goal and that the work is beneficial to the United States. National goals include but are not limited to improvements in the economy or the environment. Substantial intrinsic merit is not limited to fields of scientific research, but can be demonstrated for almost any field, including but not limited to the arts, social sciences, and business.
National Scope
This factor requires that the applicant show that his/her endeavor is national in scope and not limited to one geographic area. If the applicant can show that s/he has received government funding, has been cited in peer reviewed publications or journals, and has obtained good letters of recommendation, it becomes easy to satisfy this requirement.
National Interest
This factor is perhaps the most difficult of the three to satisfy, but is not insurmountable. The AAO, in its decision, stated, “The petitioner . . . must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.” This means that the national interest of the applicant’s endeavor must outweigh the national interest inherent in the labor certification process. To satisfy this requirement, the applicant should submit, at a minimum: (a) evidence of significant prior achievement in the field; (b) evidence that the applicant is different and better than U.S. workers in his or her field; and (c) evidence of his or her objective influence in the field.