Second prong test for National Interest Waiver was established by precedent NYSDOT case (8/7/1998) and it says: it must be shown that the proposed benefit will be national in scope.
What is national in scope
Once it is proved that petitioner’s proposed employment is in an area of substantial intrinsic merit, it must be shown that its benefits are national in scope. This means that applicant’s job cannot be beneficial only for his / her employer or limited local area and must extend beyond the work location.
However, as shown in NYSDOT case, job may be limited to a particular geographic area if it serves to US national goal – local New York bridges are connected to national transportation system (see more details below). Thus connections between almost any kind of job and national interest may be found.
It must be also clear that proposed employment will not affect other areas negatively. Precedent NYSDOT case gives this example:
There may be cases where the benefit is not only purely local, but may even be harmful to the national interest. For example, the construction of a dam may benefit one area while cutting off a crucial water supply to another area.
If applicant can prove that his / her work is in an area of substantial intrinsic merit and is not contrary to the interests of any part of the United States, he / she can argue that the benefits are national in scope.
NYSDOT case states:
While the alien’s employment may be limited to a particular geographic area, New York’s bridges and roads connect the state to the national transportation system. The proper maintenance and operation of these bridges and roads therefore serve the interests of other regions of the country.
Moreover, nothing in the record indicates that proper maintenance of New York’s transportation infrastructure would have an adverse impact on the interests of other regions. We therefore conclude that the occupation in this case serves the national interest.
Work of bridge engineer doesn’t affect the nation as a whole directly, but it is related indirectly to the benefits for national transportation.
Researchers and scientists usually easily demonstrate that their work is national in scope, rather than applicants from arts, business or education areas. Research funded by national government should be a favorable factor.
From previous NIW cases we can see another examples of jobs which were already considered as national in scope, however these cases were finally denied (most of them didn’t meet third NYSDOT requirement). We chose also several cases from a minor group outside research areas:
- entrepreneur – business executive in the railroad industry. First USCIS stated: proposed benefits of the beneficiary’s work would accrue primarily to the petitioner and its customers and, thus, would not be national in scope. Lawyer argued: petitioner’s company provides unique services to the railroad industry in a location through which almost all transcontinental trains pass and has clients all over the United States. And finally AAO decided on appeal, based on similar decision in NYSDOT case: Given the beneficiary’s significant involvement with the national transportation system in this matter, we are persuaded that the proposed benefits of his work would also be national in scope. (LIN 08 084 51017, AAO January 7, 2010)
- advocate/lawyer exporting U.S. goods to Asia and Africa. USCIS confirmed that: the proposed benefits of his work, increased exports from the United States and improved economic conditions in Asia and Africa, would be national in scope. (EAC 06 110 50107, AAO January 28, 2008)
- research assistant in materials research. USCIS confirmed that: development of improved high-energy absorbent materials would be national in scope. (LIN 06 012 51789, AAO March 31, 2008)
- postdoctoral research fellow in molecular biology. USCIS confirmed that: improving health care and environmental management would be national in scope. (SRC 07 800 15621, AAO March 05, 2010)
- patient safety officer worked in public health. USCIS confirmed that: reducing the national rate of acute care hospitalizations among home care patients would be national in scope. (AAO August 04, 2010)
- biomedical engineer. USCIS confirmed that: improved understanding of the medical complications involved in weightlessness would be national in scope. (AAO April 01, 2011)
- violinist. USCIS confirmed that: “bringing the arts directly to all segments of society, including the youth of America” would be national in scope. These proposed benefits were submitted in the form of testimonial letter from Chair of the Department of Music at the State University of New York. (EAC 04 030 53333, AAO December 17, 2007)
- research associate in atmospheric chemistry. USCIS confirmed that: improved understanding of chemical reactions important to the formation of pollution in the atmosphere would be national in scope. (LIN 06 119 51395, AAO October 25, 2007)
- president of a new company specializing in sales, servicing and export of consumer electronics. First USCIS denied it: It appears the petitioner was recruited to expand the
company’s market share among other duties, but time will tell if the petitioner’s services are truly national in scope. At this time, there is no verifiable evidence that this is the case. Later AAO agreed on appeal that: a leadership position in a consumer electronics company can have national scope. (AAO April 03, 2012)
Any kind of employment which is related to US national goal and doesn’t affect some areas negatively, should meet this NIW requirement.
What is not considered as national in scope
Precedent NYSDOT case established that even if field of endeavor is in national interest, work performed by single employee is considered as purely local and thus cannot meet NIW requirement “national in scope” (Id. at 217, n.3):
For instance, pro bono legal services as a whole serve the national interest, but the impact of an individual attorney working pro bono would be so attenuated at the national level as to be negligible. Similarly, while education is in the national interest, the impact of a single schoolteacher in one elementary school would not be in the national interest for purposes of waiving the job offer requirement of section 203(b)(2)(B) of the Act. As another example, while nutrition has obvious intrinsic value, the work of one cook in one restaurant could not be considered sufficiently in the national interest for purposes of this provision of the Act.
We have learned from previous National Interest Waiver cases which were denied:
- freelance psychologist, evaluating juvenile delinquents for court. First USCIS denied it based on Id. at 217, n.3: the benefits would be local rather than national in scope (same as pro bono attorney, school teacher or cook). Lawyer argued that beneficiary’s work is similar to NYSDOT case: work may begin in the geographic area of Miami, her work will affect the nation as a whole. But finally AAO also denied it on appeal: petitioner would start working as a teacher in Miami-Dade County with hopes of later expanding the program in other parts of Florida, the engineer in NYSDOT was working with New York’s established transportation infrastructure which already had a tangible impact on the national transportation system. (SRC 09 013 51678, AAO April 22, 2010)
- collegiate assistant coach, coaching track and field. USCIS denied it based on Id. at 217, n.3: The petitioner would be coaching locally at a single university such that his national impact would be negligible. (SRC 08 092 53919, AAO March 15, 2010)
- general surgeon. Counsel asserted that the petitioner’s role as a physician goes beyond serving the medical, scientific or research settings. Petitioner has made important contributions that benefit the greater medical community nationally and internationally through his research projects and teaching. But AAO denied it: We are not persuaded that a general surgeon would have an impact discernible at the national level. Supervising local residents and interns, as the petitioner has done in the past as a chief resident, also has little discernible impact at the national level. Petitioner has not established that the benefits of his employment as a general surgeon will be national in scope. (SRC 07 267 51099, AAO January 7, 2010)
Second NIW prong is typically not satisfied by people working for specific clients who are tied to one geographical area.
Evidence and supporting documentation
Simple statement in NYSDOT case shows that USCIS probably do not expect extensive documentation regarding the “national in scope” NIW rule. Hence a reasonable simple explanation of the national interest should be sufficient. Layman’s language (simple, nontechnical) should be used for this statement.
However, we also read resources advising to submit some documentation. Since this NIW requirement is easy to meet, it should not be difficult to find some evidence and get slightly better “credit” for the whole case.
If applicant published his / her research at national or international level, he / she may show “national in scope” NIW criterion through these publications. He / she can also find evidence in publications of others such as articles, news, reports etc. Especially documents released by government institutions may help to prove that the activity will serve to national wide range.
Testimonial letters from leading experts and authorities may also acknowledge that petitioner’s work will be important for all parts of the US.
Rate of success
This second prong may be a little bit more difficult to prove than first prong but in comparison with third prong it is still no problem to satisfy this requirement. Majority of applicants (researchers, postdocs etc.) meet this rule with no doubt, some other people may have problems to prove it clearly (more likely from arts, business or education areas).