The USCIS gave talented immigrants, including those with OPT, STEM OPT, H-1B and O-1 status, a wonderful gift at the end of 2016.
The Administration Appeals Office (AAO) of the USCIS made it far easier for exceptional and highly-educated immigrants to qualify for green cards by self-petitioning for National Interest Waivers (NIWs) by focusing on the value that is brought to the U.S. economy by entrepreneurs and those involved in the science, Technology Engineering and Mathematics (“STEM”) areans.
Matter of New York State Dept. of Transportation
The AAO vacated a restrictive test regarding who qualifies for an NIW enunciated in Matter of New York State Department of Transportation (NYSDOT) in 1998.
The NYSDOT legal standard set forth a very restrictive subjective criteria that made it very difficult to obtain the green card for many foreign nations.:
1. That the person seek employment in an area of “substantial intrinsic merit”;
2. That the proposed benefit be “national in scope”; and
3. That the nation’s interest in the Labor Certification process is outweighed by the Nation’s interest in giving the petitioner a waiver of that process.
After NYSDOT, it was difficult for a petitioner to secure a NIW since the legal standard that was put into place was quite subjective. While there is a separate law for physicians which eases the NYSDOT requirements, we have been successful in obtaining NIWs for medical researchers and for those working in defense-related industries. The argument that we continue to use is that researchers and scientists would be able to serve the nations interest faster opposed to being stymied in their efforts to seek grants and/or Federal funds because of their foreign national status.
The NYSDOT decision was very inflexible and thousands of talented immigrants who should have been qualified to self-petition for NIWs were not able to do so.
The 3rd requirement of NYSDOT has always been the most difficult to surmount. It was always difficult to prove that the PERM process would be contrary to the national interest.
For more information, or to speak to one of the immigration and nationality lawyers or attorneys at the Nachman, Phulwani Zimovcak (NPZ) Law Group, P.C., please feel free to e-mail us at info@visaserve.com or to call us at 201-670-0006 (x107).
LINK: Ruling by US Court to Quicken Green Card Process
See the below link to read this new NIW case