by Victoria Chen, J.D.(陈品瑞律师法律博士)
Q21: Is a job offer required for NIW?
A: No. No job offer is required.
Q22: What are the major advantages of applying for EB-2 NIW?
A: 1. No labor certification is required.
2. No job offer or permanent job position is required.
3. Self-petition is allowed.
4. Most visas are current except for China and India.
Q23: What is national interest?
A: The range of cases and decisions indicates that the government requires a fairly direct benefit to the community-at-large before it will agree that a job is in the national interest. Factors that have been considered in successful cases include:
The foreign person's admission will improve the U.S. economy.
The foreign persons' admission will improve wages and working conditions of U.S. workers.
The foreign persons' admission will provide more affordable housing for young, aged, or poor U.S. residents.
The foreign persons' admission will improve the U.S. environment and lead to more productive use of the national resources.
The foreign persons' admission is requested by an interested U.S. government agency.
Q24: How difficult is it to have NIW petition approved?
A: A foreign beneficiary seeking to meet the NIW standard must make a showing significantly above that necessary to prove “prospective national benefit.“ The burden will rest with the foreign national to establish that exemption from or waiver of the job offer will be in the national interest. Each case will be judged on its own merits. If a beneficiary is qualified, the probability of success depends largely on the way the case is presented. If the evidence is relevant and well presented, and the argument is made persuasively, then the case should be approved routinely.
Q25: What eligibility criteria should be identified in the case of NIW petitions in Form I-140?
The I-140 petition for Member of the Professions Holding an Advance Degree or an Foreign beneficiary of Exceptional Ability, requesting a National Interest Waiver Foreign beneficiary of Exceptional Ability should include the following documents:
1. Identify how the foreign beneficiary qualifies for classification as a member of the professions with an advanced degree (e.g. the foreign beneficiary holds an advanced degree, the foreign beneficiary holds a Bachelor's degree in addition to five years of progressive experience, or the foreign beneficiary qualifies as an foreign beneficiary of exceptional ability).
2. Identify each of the three criteria (e.g. intrinsic merit, national scope, and national interest) that must be satisfied and provide the evidence needed to satisfy each criterion. ( Matter of New York State Department of Transportation (NYSDOT )
Q26: What standard does the USCIS take to determine a NIW case?
A: The decision of In re New York State Department of Transportation (NYDOT)established new standards for obtaining NIWs that the USCIS adopted. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for an NIW:
Area of Substantial Intrinsic Merit,
Proposed Benefit of National Scope, and
Significant Benefit in the “National Interest“ Field.
Q27: What is the requirement of “area of substantial intrinsic merit“ in NYDOT? Does it difficult to meet?
A: In the precedent case NYDOT, the court stated that the petitioner must establish that the foreign national's proposed employment is in an area of substantial intrinsic merit. The importance of the occupation or the field of endeavor must be established as a threshold requirement. If a particular field of endeavor is related to an important national goal, this requirement should not be difficult to meet.
Q28: What activity is within “national scope“ in NYDOT? Does the requirement difficult to meet?
A: The emphasis of this factor is on the existence of a national goal that the foreign beneficiary's proposed undertaking will promote. Merely serving a regional, local, or private interest is not sufficient. The correlation between the national goal and the foreign beneficiary's activity need not be direct, however. Almost any economic activity, even if essentially local in nature, would seem to tie into the national economic network and therefore could be said to further the national interest. The example of work on one state's road and bridge infrastructure in the precedent decision lends support to this view. Further support for this view was that INS statements after NYDOT indicating that it did not expect or want extensive documentation regarding the national interest in a particular activity; a fairly simple affirmation and explanation of the national interest would suffice.
Q29: What activity is not “within national scope“ in NYDOT?
A: The AAO decisions after NYDOT indicate that there are activities that are insufficiently national in scope. These cases rely on dicta in NYDOT suggesting that the services of teachers, pro bono attorneys, and gourmet chefs are so removed from national goals that their impact on a national level is negligible.
Q30: What is the standard of “significant benefit in the national interest field“inNYDOT?
A: A NIW petition must establish that the “significant“ benefit derived from this particular foreign person's participation in the “national interest“ field of endeavor “considerably“ outweighs the “inherent“ national interest in protecting U.S. workers through the labor certification process. The petitioner must present strong countervailing evidence to show that the benefit of the foreign beneficiary's skills and background “considerably outweigh“ the national interest in the labor certification process.
The AAO has stated that this third prong in NYDOT can be satisfied if the foreign beneficiary would serve the national interest “to a substantially greater degree than would an available U.S. worker having the same minimal qualifications.“ The beneficiary must demonstrate the service to the national interest by a record of achievements “with some degree of influence on the field as a whole.“
资料来源： http://www.wegreened.com
Q21: Is a job offer required for NIW?
A: No. No job offer is required.
Q22: What are the major advantages of applying for EB-2 NIW?
A: 1. No labor certification is required.
2. No job offer or permanent job position is required.
3. Self-petition is allowed.
4. Most visas are current except for China and India.
Q23: What is national interest?
A: The range of cases and decisions indicates that the government requires a fairly direct benefit to the community-at-large before it will agree that a job is in the national interest. Factors that have been considered in successful cases include:
The foreign person's admission will improve the U.S. economy.
The foreign persons' admission will improve wages and working conditions of U.S. workers.
The foreign persons' admission will provide more affordable housing for young, aged, or poor U.S. residents.
The foreign persons' admission will improve the U.S. environment and lead to more productive use of the national resources.
The foreign persons' admission is requested by an interested U.S. government agency.
Q24: How difficult is it to have NIW petition approved?
A: A foreign beneficiary seeking to meet the NIW standard must make a showing significantly above that necessary to prove “prospective national benefit.“ The burden will rest with the foreign national to establish that exemption from or waiver of the job offer will be in the national interest. Each case will be judged on its own merits. If a beneficiary is qualified, the probability of success depends largely on the way the case is presented. If the evidence is relevant and well presented, and the argument is made persuasively, then the case should be approved routinely.
Q25: What eligibility criteria should be identified in the case of NIW petitions in Form I-140?
The I-140 petition for Member of the Professions Holding an Advance Degree or an Foreign beneficiary of Exceptional Ability, requesting a National Interest Waiver Foreign beneficiary of Exceptional Ability should include the following documents:
1. Identify how the foreign beneficiary qualifies for classification as a member of the professions with an advanced degree (e.g. the foreign beneficiary holds an advanced degree, the foreign beneficiary holds a Bachelor's degree in addition to five years of progressive experience, or the foreign beneficiary qualifies as an foreign beneficiary of exceptional ability).
2. Identify each of the three criteria (e.g. intrinsic merit, national scope, and national interest) that must be satisfied and provide the evidence needed to satisfy each criterion. ( Matter of New York State Department of Transportation (NYSDOT )
Q26: What standard does the USCIS take to determine a NIW case?
A: The decision of In re New York State Department of Transportation (NYDOT)established new standards for obtaining NIWs that the USCIS adopted. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for an NIW:
Area of Substantial Intrinsic Merit,
Proposed Benefit of National Scope, and
Significant Benefit in the “National Interest“ Field.
Q27: What is the requirement of “area of substantial intrinsic merit“ in NYDOT? Does it difficult to meet?
A: In the precedent case NYDOT, the court stated that the petitioner must establish that the foreign national's proposed employment is in an area of substantial intrinsic merit. The importance of the occupation or the field of endeavor must be established as a threshold requirement. If a particular field of endeavor is related to an important national goal, this requirement should not be difficult to meet.
Q28: What activity is within “national scope“ in NYDOT? Does the requirement difficult to meet?
A: The emphasis of this factor is on the existence of a national goal that the foreign beneficiary's proposed undertaking will promote. Merely serving a regional, local, or private interest is not sufficient. The correlation between the national goal and the foreign beneficiary's activity need not be direct, however. Almost any economic activity, even if essentially local in nature, would seem to tie into the national economic network and therefore could be said to further the national interest. The example of work on one state's road and bridge infrastructure in the precedent decision lends support to this view. Further support for this view was that INS statements after NYDOT indicating that it did not expect or want extensive documentation regarding the national interest in a particular activity; a fairly simple affirmation and explanation of the national interest would suffice.
Q29: What activity is not “within national scope“ in NYDOT?
A: The AAO decisions after NYDOT indicate that there are activities that are insufficiently national in scope. These cases rely on dicta in NYDOT suggesting that the services of teachers, pro bono attorneys, and gourmet chefs are so removed from national goals that their impact on a national level is negligible.
Q30: What is the standard of “significant benefit in the national interest field“inNYDOT?
A: A NIW petition must establish that the “significant“ benefit derived from this particular foreign person's participation in the “national interest“ field of endeavor “considerably“ outweighs the “inherent“ national interest in protecting U.S. workers through the labor certification process. The petitioner must present strong countervailing evidence to show that the benefit of the foreign beneficiary's skills and background “considerably outweigh“ the national interest in the labor certification process.
The AAO has stated that this third prong in NYDOT can be satisfied if the foreign beneficiary would serve the national interest “to a substantially greater degree than would an available U.S. worker having the same minimal qualifications.“ The beneficiary must demonstrate the service to the national interest by a record of achievements “with some degree of influence on the field as a whole.“
资料来源： http://www.wegreened.com
