As mentioned in previous post, National Interest Waiver requirements (three pronged test) were established by precedent NYSDOT case on 7th August, 1998. ALL of these three criteria (intrinsic merit, national in scope and national interest) must be satisfied to qualify for National Interest Waiver.
NYSDOT case is crucial for understanding National Interest Waiver requirements. Let’s study this case carefully and see what criterion was easily met and what buried this case.
Civil engineer (beneficiary) worked for New York State Department of Transportation (NYSDOT) (petitioner) as bridge engineer.
1. NIW requirement: Substantial intrinsic merit
Field of endeavor (bridge engineering) is an area of substantial intrinsic merit because of importance of bridges and their proper maintenance.
First prong test was satisfied.
2. NIW requirement: National in scope
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 interest of other regions of the country. It is also clear that proper maintenance of bridges wouldn’t adversely impact interests of other regions. Opposite case could be for example construction of a dam which would greatly benefit one area but would be harmful for another regions by cutting off a crucial water supply.
Second prong test was satisfied.
3. NIW requirement: National interest
First two criteria were clearly and easily met. Third requirement is more tricky and seems to be critical and the most difficult prong test to satisfy. Thus we should analyze it more in depth. Let’s start with quote from original case what is required to meet:
The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien. The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.
Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. It is not sufficient for the petitioner simply to enumerate the alien’s qualifications, since the labor certification process might reveal that an available U.S. worker has the qualifications as well. Likewise, it cannot be argued that an alien qualifies for a national interest waiver simply by virtue of playing an important role in a given project, if such a role could be filled by a competent and available U.S. worker. The alien must clearly present a significant benefit to the field of endeavor.
With regard to the unavailability of qualified U.S. workers, the job offer waiver based on national interest is not warranted solely for the purpose of ameliorating a local labor shortage, because the labor certification process is already in place to address such shortages. Similarly, the Department of Labor allows a prospective U.S. employer to specify the minimum education, training, experience, and other special requirements needed to qualify for the position in question. Therefore, these qualifications, taken alone, do not justify a waiver of the certification process which takes these elements into account.
Now, closer look to petitioner’s arguments and testimonials:
The petitioner’s subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit. While the national interest waiver hinges on prospective national benefit, it clearly must be established that the alien’s past record justifies projections of future benefit to the national interest. The inclusion of the term “prospective” is used here to require future contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior achievements, and whose benefit to the national interest would thus be entirely speculative.
The alien clearly must have established the ability to serve the national interest to a substantially greater extent than the majority of his colleagues. Petitioner must demonstrate specific prior achievements which establish the alien’s ability to benefit the national interest.
The beneficiary’s supervisor describes the function of the NYSDOT Structures Division as the provision of professional engineering services for the rehabilitation, replacement, maintenance and inspection of bridges. Counsel states that the beneficiary’s expertise is in prestressed concrete construction and design of post-tensioning and of curved bridges.
Another witness said that the beneficiary has been involved in detailed seismic analysis using state-of-the-art seismic analysis software. Recent earthquakes have demonstrated the need for careful implementation of new guidelines for improving the seismic resistance of bridges. Petitioner has submitted evidence showing several earthquakes in State of New York.
The beneficiary also analyzes and designs curved bridges, which can provide 10 to 15% economy over a conventional system comprising of straight girders. Witness said: I am personally aware of the national shortage of the type of expertise the beneficiary possesses in the design of curved girder bridges. Labor shortage should be tested through the labor certification process rather than applying for National Interest Waiver.
Witness from Federal Highway Administration (FHWA) states that the work of the FHWA is in the national interest, as it will benefit the whole of America in providing a safer and cost-effective traveling way across the nation. Maintenance of a trained and competent engineering staff is paramount to the success of the Federal Highway program. This statement was too general with no specific assertion about the beneficiary.
These arguments focus largely on the critical state of the bridges and importance of transportation system to national economy. The issue in this case is not whether proper bridge maintenance is in the national interest, but rather whether this particular beneficiary, to a greater extent than U.S. workers having the same minimum qualifications, plays a significant role in the preservation and construction of bridges.
Other witnesses assert that the beneficiary’s qualifications make him ideally suited for the kind of complicated engineering design that is done here or beneficiary’s prior work experience was a key consideration in hiring him or beneficiary’s unique background and experience in the field of bridge rehabilitation by applying techniques such as post-tensioning is a resource that can be applied toward the many bridge projects upcoming in the United States. However, these objective qualifications which are necessary for the performance of the occupation can be articulated in an application for alien labor certification. The fact that the alien is qualified for the job does not warrant a waiver of the labor certification requirement. It cannot suffice to state that the alien possesses useful skills, or a unique background, it must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.
Previous employer said that the beneficiary had rigorous training in the use and application of the world famous Freyssinet System of Posttensioning and has worked on innovative projects such as segmental arch structures patented by the French company Matiere. But it is not clear in what capacity the beneficiary worked on the project. The record does not contain any indication that the beneficiary developed the technology for which Matiere holds the patent. An alien’s job-related training in a new method, whatever its importance, cannot be considered to be an achievement or contribution comparable to the innovation of that new method. While innovation of a new method is of greater importance than mere training in that method, it must be stressed that such innovation is not always sufficient to meet the national interest threshold. For example, an alien cannot secure a national interest waiver simply by demonstrating that he holds a patent. Whether the specific innovation serves the national interest must be decided on a case by case basis. Simple exposure to advanced technology constitutes, essentially, occupational training which can be articulated on an application for a labor certification. The issue of whether similarly-trained workers are available in the U.S. is an issue under the jurisdiction of the Department of Labor.
Another witness stated that NYSDOT is in the process of converting to metric measurements and beneficiary’s previous experience will help. But this fact alone will not be in national interest (too simple and commonly known). Again, employer needs for such a worker can be expressed on an application for a labor certification.
Reports submitted on appeal reflect substantial cost savings on projects on which the beneficiary worked. The record does not show that these savings are due to the beneficiary’s involvement.
A number of the witnesses in this case assert that engineers with the beneficiary’s qualifications are in short supply. The petitioner has never clearly explained why the job offer and thus the labor certification requirement should be waived. The situation appears to correspond closely to the very situation that the labor certification process was designed to address.
It is clear that beneficiary provides valuable services to his employer; at issue here is the effect of such services on the national interest when compared to others in the profession.
The petitioner has not shown that it will suffer a substantial disruption in its efforts to maintain New York’s bridges and roads if a national interest waiver is not granted.
Although the petitioner has shown that the beneficiary is a competent engineer whose skills and abilities are of value to his current employer, the petitioner has failed to establish that a job offer waiver based on national interest is warranted.
Alien may play an important role in the activity to be performed by the petitioner is insufficient to establish eligibility for a job offer waiver based on national interest, since qualified U.S. workers may be available to play a similar role.
Third prong test was not satisfied. Appeal was dismissed by The Administrative Appeals Office (AAO).
What we have learned from this case? It seems petitioner used mostly reference letters as an evidence. Witnesses were focused too much on arguments like shortage of US workers and they explained that beneficiary is well trained, highly qualified and unique, but they didn’t clearly establish that he is critical member of a team (much better than US workers) and the team function would be severely impaired without him. They didn’t explain why the labor certification should be waived. Their statements were more suitable for labor certification process rather than National Interest Waiver.