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NIW: the new three-prong test and how it was applied in Ma
作者:YZ律师     发文时间: 2017年01月17日 13:49:13

David Yang 律师


In a precedent decision (Matter of Dhanasar) published on 12/27/2016, USCIS
Administrative Appeals Office (AAO) replaced the old three-prong test set
forth in Matter of New York State Dept. of Transportation (NYSDOT) with a
new three-prong test for adjudicating national interest waiver petitions.
Under the new framework, USCIS may grant a national interest waiver to a
foreign national who holds an advanced degree or has demonstrated
exceptional ability in the sciences, arts, or business, if the petitioner
demonstrates, by a preponderance of evidence, the following:

1) the foreign national’s proposed endeavor has both substantial merit
and national importance

• Merit: the endeavor’s merit can be demonstrated in a range of
areas such as business, entrepreneurialism, science, technology, culture,
health, or education. Evidence that the endeavor has the potential to create
a significant economic impact may be favorable but not required. Endeavors
related to research, pure science, and the furtherance of human knowledge
may qualify, whether or not the potential accomplishments in those fields
are likely to translate into economic benefits for the U.S.

• National importance: is determined by considering the potential
prospective impact of the endeavor. Instead of evaluating the prospective
impact solely in geographic terms, USCIS looks at the broader implications
of the endeavor. An undertaking may have national importance if it has
national or even global implications within a particular field, such as
those resulting from certain improved manufacturing processes or medical
advances. An endeavor that has significant potential to employ U.S. workers
or has other substantial positive economic effects may be shown to have
national importance.

2) the foreign national is well positioned to advance the proposed
endeavor

To determine if the foreign national meets this prong, USCIS considers
factors including, but not limited to, the following:

• the individual’s education, skills, knowledge and record of
success in related or similar efforts;
• model or plan for future activities;
• progress towards achieving the proposed endeavor;
• interest of potential customers, users, investors, or other
relevant entities or individuals.

3) that, on balance, it would be beneficial to the US to waive the job
offer and labor certification requirements

USCIS may evaluate the following factors in determining if the foreign
national meets this prong:

• whether, in light of the nature of the foreign national’s
qualifications or proposed endeavor, it would be impractical either for the
foreign national to secure a job offer or for the petitioner to obtain a
labor certification;
• whether, even assuming that other qualified U.S. workers are
available, the US would still benefit from the foreign national’s
contributions;
• whether the national interest in the foreign national’s
contributions is sufficiently urgent to warrant forgoing the labor
certificate process.


The petitioner in Matter of Dhanasar is a post-doctoral researcher at North
Carolina Agricultural and Technical State University and performs research
and teaching in the field of aerospace engineering. The petitioner submitted
the following evidence in support of his petition:

• Two Master’s degrees of science in mechanical engineering and
applied physics respectively, and a PhD degree in engineering;
• Documents that his graduate and post-graduate research has
focused on hypersonic propulsion systems and computational fluid dynamics;
• Documents that he developed a validated computational model of a
high-speed air-breathing propulsion engine and a novel numerical method for
accurately calculating hypersonic air flow;
• Copies of his publications and other published materials that
cite his work;
• Evidence of his membership in professional associations;
• Evidence on research grants/funding;
• Media articles and other evidence documenting government interest
in the development of hypersonic technologies;
• Letters from experts describing his research in detail and
attesting to his expertise in the field of hypersonic propulsion systems.


Applying the new three-prong test, AAO determined that the petitioner is
eligible for NIW.

In determining that the petitioner meets the first prong of the test, AAO
looked at the following:

Substantial Merit:

• The petitioner’s intent to continue research into the design and
development of propulsion systems for potential use in military and
civilian technologies;
• Letters by experts describing how research in this area enhances
national security and defense by allowing the US to maintain its advantage
over other nations in the field of hypersonic flight;
• The proposed research aims to advance scientific knowledge and
further national security interests and US competitiveness in the civil
space sector.

National Importance:

• Letters by experts describing the importance of hypersonic
propulsion research as it relates to US strategic interests;
• Media articles and other evidence documenting the interest of the
House Committee on Armed Services in the development of hypersonic
technologies and discussing the potential significance of US advances in
this area of research and development.


In determining that the petitioner meets the second prong of the test, AAO
looked at the following:

• The petitioner’s multiple graduate degrees in relevant fields;
• The petitioner’s experience conducting research and developing
computational models that support the mission of Department of Defense to
develop air superiority and protection capabilities of US military forces,
and that assist in the development of platforms for Earth observation and
interplanetary exploration;
• Expert letters that describe US government interest and
investment in the petitioner’s research;
• Documentation that the petitioner played a significant role in
projects funded by grants from the National Aeronautics and Space
Administration (NASA) and Air Force Research Laboratories (AFRL).

AAO concluded that the petitioner’s education, experience, and expertise in
his field, the significance of his role in research projects, as well as
sustained interest of and funding from government entities, position him
well to continue to advance his proposed endeavor of hypersonic technology
research.


In determining that the petitioner meets the third prong of the test, AAO
looked at the following:

• The petitioner’s graduate degrees in fields tied to the proposed
endeavor;
• Record that demonstrates that the petitioner has considerable
experience and expertise in a highly specialized field;
• Evidence that shows that research on hypersonic propulsion holds
significant implications for US national security and competitiveness;
• Repeated research funding in which the petitioner played a key
role, which indicates that government agencies have found the petitioner’s
work on this topic to be promising and useful.

AAO concluded that because of his record of successful research in an area
that furthers U.S. interests, the petitioner offers contributions of such
value that, on balance, they would benefit the US even assuming that other
qualified US workers are available.


In its decision, AAO acknowledged that NYSDOT’s third prong, in particular,
had generated great confusion for petitioners and adjudicators because it
was explained in several different ways, including: 1) the petitioner needs
to demonstrate that "the national interest would be adversely affected if a
labor certification were required”; 2) the petitioner needs to demonstrate
that the individual “presents a national benefit so great as to outweigh
the national interest inherent in the labor certification process”; 3) the
petitioner needs to establish that the individual will “serve the national
interest to a substantially greater degree than would an available U.S.
worker having the same minimum qualifications”; and 4) “it clearly must be
established that the alien’s past record justifies projections of future
benefit to the national interest”, and that alien’s past history of
demonstrable achievement has “some degree of influence on the field as a
whole.”

AAO noted that the new third prong “does not require a showing of harm to
the national interest or a comparison against U.S. workers in the petitioner
’s field,” and thus is more flexible and can be applied to a great variety
of individuals.


At this point, it is not clear how USCIS officers will apply the new test in
adjudicating NIW petitions. My interpretation is that while elimination of
the concept of “harm to national interest” broadens the discretion of
adjudicators, the foreign national’s past achievements and the significance
and impact of the same will remain the key to a successful petition in most
cases.



Attorney David Yang is a founding partner of YZ Law Group and has
successfully handled numerous EB1A, EB1B and NIW petitions. He can be
reached at [email protected]


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