AAO grants national interest waiver to commodity supplier

The Administrative Appeal Office (AAO) of the U.S. Citizenship and Immigration Services grants a national interest waiver to a commodity trader/supplier, in a non-precedent decision, after concluding that the applicant's immigration will benefit the U.S. to an extent that outweighs the requirement of labor certification.

At issue was an EB-2 petition filed by a commodity trade and supply business on behalf of its manager, who was also the company's founder and sole employee.  The petition requested that the requirement of labor certification be waived in the national interest of the United States.  The case was filed with the Texas Service Center, which denied the petition after issuing a Request for Evidence (RFE) and also a Notice of Intent to Deny (NOID) to the petitioner.  The petitioner filed an appeal with the AAO.

RFE for proof of national scope
The petitioner is a supplier and distributor of swimming pool plastering materials in the U.S.  The RFE issued by the TSC asked for evidence to show that the benefits of beneficiary's services were national in scope, and also for evidence that he was influential in his field.  In response, the petitioner established that it had 100 customers located in nine different States, nine America suppliers located in four different States and more than four international sources of imported materials.  The beneficiary also maintained that he had a customer base of approximately 80 family businesses and about 23 private companies, all of them relying on him for steady supply of goods, competitive prices and custom credit lines. The petitioner also provided numerous letters from business owners who confirmed that the beneficiary had helped them stay in business.

NOID:  Beneficiary stands out in the field?
Subsequently, the TSC director issued a Notice of Intent to Deny (NOID) to petitioner, finding insufficient evidence to show that the beneficiary's accomplishments distinguish him from others in the field.  The director found the letters submitted not sufficient as they were written by beneficiary's business partners or customers. The director wanted to see more independent opinion about the beneficiary's achievements in order to waive the requirement for labor certification.

The beneficiary responded to the NOID by first observing that labor certification was not realistic, given the fact that he was both the owner of the company and the only employee.  The Labor Department would not likely grant certification to self-employed individuals.  The beneficiary also noted that that USCIS has been proactively reaching out to entrepreneurs, citing the Service Entrepreneurs in Residence initiative as an example.  The beneficiary also submitted a new letter from a senior research analyst which explained that (1) The petitioner's success stems from the beneficiary's ability to identify market fluctuations in markets; (2) In commoditized product business, it is the trust and credibility of the supplier organization that differentiates it from its competitors; (3) A business entity's trust and credibility comes from its representatives; (4) Since the beneficiary is the sole representative of the petitioner, and it would be almost impossible to find any other more qualified personnel to do the beneficiary's job of projecting trust and credibility to customers.

The TSC director ultimately denied the NIW application, after having concluded that beneficiary failed to present sufficient evidence to prove that he stands out among his peers.

AAO grants NIW
The AAO reversed the denial and granted NIW to the beneficiary, noting that the beneficiary's contribution to the filed is through his "transaction of business" rather than product development.  The AAO noted that the beneficiary had helped many small businesses, individually and cumulatively, stay in business. These achievements go above and beyond customer satisfaction and leave a legacy far beyond the beneficiary's own business ventures.  Consequently, the AAO concluded that beneficiary's services outweigh the national interests of labor certification.

There are several points that are worth noting here. First, the beneficiary in this case was a business professional.  It demonstrates that NIW is not just reserved for scientists, researchers or medical professionals.  Secondly, independent experts letters are usually given more evidentiary weight than letters written by colleagues or employers.  Thirdly, small companies (such as the petitioner here) with one or two employees may also file an employment-based petition, although it would be difficult to prove the case.

October 2012 Visa Bulletin: Employment 2nd Preference Major Retrogression

The Visa Bulletin for October 2012 is disappointing to many foreign nationals who have pending employment based petitions, especially those from India and China.  Employment-based, second preference (EB2) India has retrogressed to a cutoff date of September 1, 2004, and EB2 China to July 15, 2007 due to the large number of pending adjustment of status applications before the USCIS.  This is far worse that what was previously predicted by the State Department.  “Other Countries” in the EB2 category are still not current, but it is expected that may change soon.

On the family side, F1 continues to move forward slowly. F2A moves forward by three weeks to June 1, 2010 for China, India, Philippines, and “Other Countries”.  F2B remain unchanged for most countries except Mexico and Philippines.  Please see below for details:

Family	Other Countries	China	India	Mexico	Philippines
F1	8-Oct-05	8-Oct-05	8-Oct-05	15-Jun-93	1-Apr-96
F2A	1-Jun-10	1-Jun-10	1-Jun-10	15-May-10	1-Jun-10
F2B	15-Sep-04	15-Sep-04	15-Sep-04	1-Oct-92	22-Jan-02
F3	22-May-02	22-May-02	22-May-02	8-Feb-93	22-Jul-92
F4	15-Mar-01	15-Feb-01	15-Mar-01	22-Jun-96	8-Feb-89

1st: Unmarried Sons and Daughters of Citizens (about 23,000 per year).

2A: The 2 "A" preference is for Spouses and Children (under 21 & unmarried) of LPR's.

2B: The 2 "B" Preference is for Unmarried Sons and Daughters (21 or older) of LPR's.

3rd: Married Sons and Daughters of Citizens.(about 23,000 per year)

4th: Brothers and Sisters of Adult Citizens.(about 65,000 per year)

Employment	Other Countries	China	India	Mexico	Philippines
1st	C	C	C	C	C
2nd	1-Jan-12	15-Jul-07	1-Sep-04	1-Jan-12	1-Jan-12
3rd	22-Oct-06	8-Feb-06	15-Oct-02	22-Oct-06	1-Aug-06
Other Workers	22-Oct-06	22-Jun-03	15-Oct-02	22-Oct-06	1-Aug-06
4th	C	C	C	C	C
5th	C	C	C	C	C

1st: Priority Workers (Extraordinary ability aliens, multinational companies executives/managers, outstanding prof./researchers)

2nd: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability.

3rd: Skilled Workers, Professionals, and Other Workers (Unskilled.)

4th: "Special Immigrants" (Religious & others)

5th: Employment Creation (Investors)

Recent Decision on National Interest Waiver

Foreign professionals and researchers applying for employment-based permanent residence status may consider a request for a national interest waiver (NIW).  Normally, a foreign worker who wishes to apply for a green card through an offer of U.S. employment must obtain a certified Permanent Foreign Labor Application ("Labor Certification").  The Labor Certification is to show that the employer is not able to find a qualified U.S. worker who is able, willing and ready to do the job.  Applicants who apply for a national interest waiver are requesting that the Labor Certification requirement be waived because it is in the national interest of the United States.  

Unfortunately, the jobs that qualify for a national interest waiver are not defined by statute. National interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national interest. Applicants seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their green card application directly with USCIS.

The legal standard for adjudicating an NIW petition was clarified by an Administrative Appeals Office (AAO) decision, Matter of New York Dept. of Transportation in 1998.  In NYDOT, the Beneficiary possessed a master’s degree in civil engineering and was being petitioned to provide professional engineering services for the rehabilitation, replacement, maintenance and inspection of bridges. The AAO cited three factors that must be considered when evaluating a request for a national interest waiver. 

First, it must be shown that the foreigner seeks employment in an area of substantial intrinsic merit. Eligibility is not established solely by showing that the beneficiary's field of endeavor has intrinsic merit. In the NYDOT case, substantial intrinsic merit was found. The importance of proper maintenance of the state's bridges was sufficient to meet this first criteria.

Secondly, the petition must prove that the proposed benefit will be national in scope. In the NYDOT case, while the foreign engineer's employment in NYDOT was limited to the local area, New York's bridges and roads connected the state to the national transport system. Because the proper maintenance and operations of bridges and roads served the interests of other regions as well, the benefit was national in scope. 

Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification was required of the foreign worker. The engineer in NYDOT failed to meet this criteria because his contributions did not stand out among his peers, and therefore, his petition did not warrant a waiver of the Labor Certification.

A recent Administrative Appeal Office (AAO) decision from November 2011 provided some additional guidelines on the requirements of the NIW application.  An NIW petition filed by a post doc research scientist in the field of nanoscience and nanotechnology was denied by the USCIS Texas Service Center.  The AAO reversed the denial on appeal mostly because the TSC failed to give proper evidentiary weight to the scientist's influential published work in his field.  Although he only had four publications, they were published in the well-known Journal of the American Chemical Society and were cited more than 400 times by his peers. 

The AAO also noted that the legislature history suggested that the standard of adjudication for NIW applications should be applied as flexible as possible.  According to the AAO, it does not matter that the petitioner's articles were published when he was still a graduate student, which is an issue for EB-1B outstanding researcher petitions.  Finally, the AAO also noted that Congress's intention is to grant national interest waiver on the basis of the merits of the individual applicant rather than the importance of a particular field of work; the nonscientist met his legal burden of proof for a national interest waiver.

In sum, the requirements for a national interest waiver are stringent.  But for those who meet the basic requirements, a waiver can substantially speed up the green card application process.

(For the current legal standard of NIW petitions, follow this link.)