Engineer's NIW Approval: Explaining the Three NIW Prongs Through an AAO Case (Part 2)

This article was originally published on the WeChat public account "US Bachelor and High School Study Guide" of New Weiming Law Firm, and the author has recently revised and updated it. Through a series of articles, we analyze NIW (National Interest Waiver) green card cases published by USCIS, including both approved and denied cases, using examples to illustrate the standards and requirements for NIW, and explaining what can help an application get approved and what is insufficient.

The author in the mountains of western Virginia in the spring of 2022

The previous article discussed a denied NIW case for an applicant in data science and public health. This article presents an approved NIW case for an electrical engineer, published by the USCIS Administrative Appeals Office (AAO). In this case, the approval was primarily based on the description of the applicant's specific work, especially the descriptions of the work's content and importance by experts and scholars in recommendation letters (also supported by objective evidence including citation records), which gained USCIS's recognition.

The applicant is a researcher in the field of electrical engineering, and his NIW application was approved after appeal. As we know, because there are more job opportunities in electrical engineering, computer science, and data analysis-related fields, many Chinese students choose to study these majors, transfer to these majors, or pursue a degree in these fields while studying for a degree in their original major (such as theoretical science research), and then find jobs in IT, analytics, electronics, communications, and other fields and sectors. Since not every employer will smoothly support a PERM green card, and due to work visa restrictions and future job changes, many people consider applying for a green card through NIW after starting work.

The principle behind the NIW green card is: the applicant's work in science, arts, professional fields, or business benefits the U.S. national interest in education, economy, culture, etc.; and it is in the national interest for the United States to retain this applicant and waive the requirement of "employer-provided job offer and employer-sponsored green card." (In addition, NIW falls under the EB-2 category, so applicants generally must have a master's or higher degree, or a bachelor's degree plus five years of relevant experience, or meet several requirements for exceptional ability.)

This principle is relatively general. Therefore, at the end of 2016, USCIS in an important precedent decision, Matter of Dhanasar, further specified three conditions that the applicant must meet:

First, the work the applicant plans to engage in in the United States has national importance and will bring substantial benefits. This prong focuses on the specific work the applicant will undertake, which can be in business, entrepreneurship, science, technology, culture, healthcare, or education, etc., analyzing the benefits brought by the applicant's work. Regarding "national importance," USCIS considers the potential impact of the work the applicant will do in the future.

Specifically for the applicant in this case, his work involves researching tools and components needed for next-generation computers in a university's electrical engineering department. He provided recommendation letters from scholars in electrical engineering and computer science, which described the specific application value of his work direction, including improvements in memory (reducing size, increasing capacity), and the significance for next-generation computers and smartphones. The applicant also provided journal and conference articles discussing the broad impact his planned research could have on his field (indicating that the benefit of his proposed research has broader implications for the field). Note that the emphasis here is on current and future work, not past completed work. That the applicant's research projects have received widespread attention (including being mentioned in journals and conferences, as well as receiving funding support, and attention from peers and users) can serve as evidence. For the above reasons, USCIS agreed that the applicant satisfies the first prong.

Second, the applicant (as demonstrated by past achievements and current status) is well positioned to advance the proposed work. This prong is key and focuses on reviewing the applicant's personal qualifications, including education, certificates, skills, experience, past achievements, future plans or models (especially important for businesspeople), milestones already achieved, interest from others (users, investors, customers, other entities), etc. For research applicants, commonly used evidence includes publications, peer recognition, media reports, memberships, awards, etc.

Specifically for the applicant in this case, he provided multiple recommendation letters from experts and scholars, which used specific examples to describe how the applicant's work has already impacted the field of electrical engineering. For example, one recommendation letter mentioned that the applicant created new innovative designs and developed effective methods to reduce xxxx and substantively amplify xxxx, incorporating next-generation xx cells, and that compared to contemporary memory systems, this reduced xxx and increased xxx.

Note that this does not simply list how many papers the applicant published, in which journals and conferences, and how many citations received, etc. (In previous AAO cases, USCIS pointed out that if the applicant does not explain how the citation numbers correspond to research success or interest from relevant parties, it is insufficient to satisfy the second prong.) Instead, it uses specific examples to introduce what innovative work the applicant has done, what impact it has had, what advantages it has over existing systems, and what research success has been achieved.

USCIS also cited content from other recommendation letters to further illustrate the importance of a new method proposed by the applicant (the petitioner's method operates completely independent of xxx signals, and also offers valid, accurate estimation results for many kinds of yyy signals). We see that the applicant's main achievements are still in theoretical research (which is common in universities and among green card applicants; after all, research that can be directly applied to actual industrial production is relatively rare, and most people do theoretical research at an early stage). The new method proposed is used to predict experimental results, similar to proposing new diagnostic and testing theories in medicine, a new algorithm in mathematics and simulation, or a new structural concept in chemistry, biology, and materials. However, through appropriate description and positioning in recommendation letters, the applicant's work is connected to practice, emphasizing the significance of the applicant's work in design (similarly, other applicants can mention the guiding significance of their work in diagnosis, testing, and experiments), and then explaining the importance of the new design for next-generation computer CPUs. With these, the applicant's work achievements appear more prominent, and the impact and practical significance of his theoretical research on the field are established.

In addition, other recommendation letters provided by the applicant described how these recommenders "relied" on the applicant's work (letters from researchers who state that they relied on Petitioner's findings in their work), and this also played a considerable role. USCIS often asks in RFEs whether other peers have used the applicant's work or how they responded to the applicant's research. In contrast, in a previously discussed denied case published by USCIS, it was mentioned that other applicants contributed to research grant applications, but USCIS pointed out that the applicant was not the principal investigator (PI) of these research grants, so the qualifications appeared insufficient. In the previously discussed case, a recommendation letter mentioned that the applicant played a central role in a certain research project and that the applicant's analysis proved that a certain treatment strategy had a positive effect on reducing mortality. However, USCIS pointed out that the application did not show that the research had been applied, implemented, or received positive evaluation from peers. To supplement this, one can use recommendation letters to point out how peers rely on the applicant's work or give highly positive comments, as well as related reports, citations, communication emails from peers, etc.

The above important evidence all comes from appropriate recommendation letters, indicating that USCIS still values well-written recommendation letters. Recommendation letters need to be substantive, specifically explaining what the applicant's work is, what achievements have been made, and why it is important. The staff of New Weiming Law Firm hold PhD degrees in science and engineering from prestigious Chinese and American universities, have postdoctoral research experience, have published numerous papers, have personal experience obtaining U.S. green cards through EB-1A and NIW, and have rich experience helping over a thousand Chinese scholars obtain EB-1 and NIW green card approvals. We have unique advantages in this area and can deeply understand the applicant's research work and prepare substantive and persuasive documents for the applicant.

Finally, USCIS also mentioned that the applicant had objective evidence corroborating the content of the recommendation letters (as corroborating documentation regarding the significance of his work, the Petitioner provided citation evidence), including that the citation rate of his work is higher than that of peers (the rate at which his work has been cited is high relative to others in his field). Citation numbers generally cannot be avoided, but one can leverage strengths and avoid weaknesses according to the characteristics of one's own case, emphasizing and highlighting the bright spots. As we said in the previous article of this series: "My citation numbers are this, much higher than so-and-so (according to certain statistics and documents), from such-and-such places, cited by so-and-so at such-and-such schools, who praised my work in such-and-such ways, solved this and that problem, and said they would continue to advance based on my work, further develop based on my work, use it here and there, with this and that significance, etc. This shows that once my research work came out, it was like a rooster crowing at dawn, everyone suddenly understood, and纷纷 praised and admired, like Mount Fuji resounding in the east and the Aegean Sea boiling in the west, fully demonstrating the interest from peers, the overall impact on the field, and the prospects for application."

For the reasons mentioned above, USCIS found that the applicant satisfies the Second Prong of the NIW standard.

Third, on balance, waiving the requirement of "an employer offering a position and supporting the green card/labor certification" is beneficial to the United States. This prong generally requires:

• 1. The first and second prongs have already been satisfied and recognized by USCIS;

• 2-1. Based on the applicant's personal qualifications, background/field, and the work to be undertaken, it is impossible to obtain an employer-offered position or labor certification in the United States (for example, if the applicant intends to invest and start a business in the United States, then obviously this goal cannot be achieved by being an employee of someone else; or the applicant's background and qualifications are very unique, such as in certain arts and sports fields, with no corresponding employer in the United States—these situations are relatively rare); or

• 2-2. Even assuming that there are qualified U.S. workers who could perform the applicant's job, the applicant's remaining in the United States and continuing to contribute is still beneficial to the United States. This can be shown through the applicant's past achievements and results, outstanding qualifications, and the significant contributions he is now and will be able to make, because the Labor Certificate only requires that a job candidate meet the minimum standards for the job. If the market is tested and workers are recruited and green cards are processed through the Labor Certificate, it may be possible to find American researchers who can wash test tubes and do experiments, but a person who only meets the basic requirements is far from comparable to our brilliant, outstanding, and highly accomplished applicant. If the applicant can stay in the United States, he can shine and continue to make the very important and outstanding contributions in his plan, which is greatly beneficial to the United States (the current new NIW standard no longer requires proving that 'if the applicant cannot stay in the United States, it will cause harm to the U.S. national interest'; it is sufficient to prove that 'being able to stay in the United States is good for the United States').

• 3. In this applicant's field, the U.S. national interest is sufficiently urgent that the labor certification step should be skipped. We have noticed that recent RFEs from USCIS often mention that the applicant could completely obtain a green card through PERM, that her employer is eligible for PERM, and ask why, why don't you go through the PERM route, what is your intention? Responding to this point requires some strategy, case by case.

The third prong requires USCIS to weigh the aforementioned factors (1), (2-1), (2-2), and (3) together, and then determine whether, on balance, waiving the labor certification (PERM) and the job offer from an employer would benefit the United States.

In the case published by USCIS, at the initial stage, USCIS agreed that the petitioner met the first and second criteria, but denied the third prong on the ground that the record did not persuasively establish that the Petitioner has had a substantial impact in the field. The initial decision also stated that “the opinions of experts in the field” were insufficient to demonstrate that the Petitioner warrants a national interest waiver, but did not discuss any specific concerns relating to his reference letters.

The USCIS Administrative Appeals Office corrected this error. It first pointed out that there is no requirement that a petitioner demonstrate “a substantial impact in the field” in order to satisfy this prong. It then noted that the prior analysis was incomplete and problematic: The Director’s prong three analysis was also problematic because it did not consider the Petitioner’s arguments and evidence relating to the benefit to the United States resulting from his research contributions, the impracticality of labor certification due to his unique skills, job creation associated with his proposed endeavor, and whether the national interest in his research is sufficiently urgent to warrant foregoing the labor certification process.

Finally, USCIS reaffirmed that the petitioner possesses considerable experience and expertise in EE, that his work can bring widespread benefits associated with research progress in xxx and yyy computing, and that he has documented his past successes in advancing research relating to xxx electronics, yyy, and zzz methods for digital systems, and in publishing influential research findings. On this basis, USCIS found that the petitioner satisfied the third prong: even assuming that other qualified U.S. workers are available, the PERM requirement of advertising and recruiting can be waived (Based on Petitioner’s track record of successful research and the significance of that work to advance U.S. technological interests, we find that he offers contributions of such value that, on balance, they would benefit the United States even assuming that other qualified U.S. workers are available.).

This recently published USCIS case shows that the application materials should not merely emphasize that the applicant has several papers, a number of citations, and recommendation letters from experts and scholars. Rather, applicants should refer to the standards and evidence that USCIS values and explain specifically and substantively what research work the applicant has actually done, what results have been achieved, and why those results matter. One cannot take the attitude of “I have a few papers, dozens of citations, and a degree—immigration officer, you figure it out.” Applicants need to tailor their arguments to their own circumstances, refer to USCIS’s detailed requirements and standards for NIW, highlight key points, focus on the logical chain and argumentation, and emphasize how they meet each specific requirement one by one.

In follow-up articles, our firm, New Weiming Law Group, will continue to explain how to meet the NIW green card criteria through more USCIS cases. Readers with questions about green card applications are welcome to email us.

This article is provided by New Weiming Law Group for educational and informational purposes and is not specific legal advice. You are welcome to call or email us with inquiries.

– Attorney Cai: [nwmc] – Attorney Yang: [nwmy] – Attorney Zhang: [nwmz] – Website: www.nwmlaw.com

Our firm, New Weiming Law Group, has assisted thousands of Chinese applicants in preparing and submitting I-140, I-485, and various immigrant and nonimmigrant visa applications, and has obtained green card and visa approvals for them. These include employment-based and family-based immigration, covering EB-1A, EB-1B, EB-1C, NIW, PERM, EB-2, EB-3, as well as downgrading from EB-2 to EB-3, EB-5 investor immigration, and more; they also include visa applications such as H-1B, B-2, O-1, and L-1. In addition, some applicants came to us after their I-485 applications were denied or after receiving an RFE, and obtained approval after responding to the RFE/NOID, filing a Motion to Reopen, or resubmitting the application. Beyond full-service packages (for example, preparing all I-485 forms and materials from the start through the applicant’s entire family receiving green cards, with responsibility to the end), we can also provide consultation according to client needs, assist with responding to RFEs and NOIDs, file Motions, help contact USCIS to inquire about Case status and request expedited processing, accompany clients to (or help prepare for) immigration interviews, provide translation, and Review application forms and materials, answer questions, and provide various other services.