Q & A: NIW [National Interest Waiver] green card petitions, legal standards and practical tips

Question: I am a PhD candidate in petroleum engineering (finished my masters in 2009) who works at a supercomputing center. I have about 16 publications including one journal article and 1 book chapter. I am either 1st or 2nd author on these. I have been a reviewer on 6 conferences. My area of research is geologic CO2 sequestration, identifying the candidate reservoirs and studying the long term effects. To a lesser extent, the research is about shale gas (but in development phase) because that’s where the CO2 is going to be stored. I managed to get 6 letters from collaborators, including 2 letters from NSF program directors. I also have a national award and about 40 citations of my work.

My question to you is this: What are my odds of getting an NIW EB2 approved given my qualifications?

Answer:  Hello and thank you for contacting me. Based on the information you have provided, it sounds very promising. Have you filed yet?

I would say your qualifications are good, in that USCIS should be satisfied that your past record of accomplishment will lead to tangible benefits in the US. However, with respect to the field, and whether it should be considered an area of substantial intrinsic merit and national in scope, that is more difficult to say, mainly because you have not provided as much information.

Please find below the standards for the NIW, for your reference. I would also advise that for EB-1 outstanding researcher/extraordinary ability cases and EB-2 NIW cases, presentation techniques play a large part in the process. In other words, you want to make the adjudicators job easier by presenting your evidence in a way that allows them to determine if your case is a winner within the first 5 minutes of review.


The EB-2 NIW I-140 petition should demonstrate the following:

1) a history of past achievement that will lead to tangible benefits in the national interest;

2) that you will continue to work in an area of substantial intrinsic merit;

3) that your application for permanent residence deserves to be placed at the head of the line because your work serves the national interest to a substantially greater degree than others.

The current legal standard for EB-2 NIW cases is derived from a CIS Administrative Appeals Office (AAO) decision, Matter of New York State Dept. of Transportation, Int. Dec. 3363 (Comm. 1998) (“NYSDOT”).

This case established a three pronged test: (1) the self-petitioner must seek employment in an area of work that is of “substantial intrinsic merit;” (2) the self-petitioner must demonstrate that the proposed benefit will be “national in scope;” and (3) the self-petitioner must establish that he will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”

In order to meet the third prong of the NYSDOT test, an applicant must do more than merely work in an area of intrinsic merit that is national in scope, as required under the first two prongs of the NYSDOT test.

The AAO restated this test as whether “[the employer would be] unlikely to locate a qualified worker who can benefit the United States in the same degree.” The applicant must distinguish herself from the hypothetical minimally qualified U.S. worker in one of two ways:

1) by presenting a record of past achievement (e.g., a track record of accomplishment) that would reasonably lead to tangible benefits to the national interest; or

2) by demonstrating that he/she is playing a key or critical role in a project that will yield tangible benefits and is national in scope.

Finally, here is a blog post related to EB-1 cases, which provides additional insight into how USCIS reviews cases for applicants similar to you: http://ryvinimmigrationblog.blogspot.com/2011/0

Best of luck and please do not hesitate to contact me if you need assistance.

Michael Ryvin
michael@ryvinlaw.com

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