1. NIW requirement: Substantial intrinsic merit

National Interest Waiver requirements are based on two relevant cases decided by Administrative Appeals Office (AAO), resp. Administrative Appeals Unit (AAU). Case called Mississippi Phosphate (EAC 92 091 50126, AAU July 21, 1992) provided a list of some factors related to national interest (national goals):

1. improving the United States economy
2. improving wages and working conditions of U.S. workers
3. improving education and training programs for U.S. children and other qualified workers
4. improving health care
5. providing more affordable housing for young and/or older poorer U.S. residents
6. improving the U.S. environment and making more productive use of natural resources
7. involving a request from an interested government agency

Before 1998 USCIS approved cases if one or more from above factors were met. However, Mississippi Phosphate case was never taken as precedent and mentioned factors were something like guidelines rather than binding criteria. After precedent NYSDOT case in 1998 (analyzed in previous post), it wouldn’t be sufficient to satisfy only one of these factors. NYSDOT case established three National Interest Waiver requirements which all must be satisfied and this led to a higher rate of NIW denials. First of these NIW requirements, substantial intrinsic merit, seems to be approximately covered by factors from Mississippi Phosphate case mentioned above.

What is substantial intrinsic merit

NIW petitioner must prove that proposed employment is in an area of substantial intrinsic merit. This means that the field of endeavor must be related to an important national goal. Applicant’s work must be beneficial and valuable for United States.

Almost any research area or scientific field may be justified as substantial intrinsic merit to the national interest of the U.S. In fact, there is no limitation only to science, also arts, business, education, media or other areas may qualify, as you can see in examples from real cases mentioned below.

Practical examples

We have learned from precedent NYSDOT case that bridge engineering is obviously an area of substantial intrinsic merit because protection of motorists and maintenance of highway bridges are important for United States.

Very obvious area of substantial intrinsic merit is something related to improving health such as cancer research, treatment of some disease, research of new vaccines etc.

From previous cases we can see another examples of occupations which were already accepted with no doubt as substantial intrinsic merit areas, 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 (LIN 08 084 51017, AAO January 7, 2010)
• advocate/lawyer exporting U.S. goods to Asia and Africa (EAC 06 110 50107, AAO January 28, 2008)
• postdoctoral fellow and research associate in hepatology research (SRC 09 165 53 163, AAO January 7, 2010)
• social scientist researching improvements to higher education (SRC 08 277 50203, AAO March 16, 2010)
• research assistant in materials research, development of improved high-energy absorbent materials (LIN 06 012 51789, AAO March 31, 2008)
• postdoctoral research fellow in molecular biology, improving health care and environmental management (SRC 07 800 15621, AAO March 05, 2010)
• patient safety officer worked in public health, reducing the national rate of acute care hospitalizations among home care patients (AAO August 04, 2010)
• biomedical engineer, improved understanding of the medical complications involved in weightlessness (AAO April 01, 2011)
• violinist, bringing the arts directly to all segments of society, including the youth of America (EAC 04 030 53333, AAO December 17, 2007)
• research associate in atmospheric chemistry, improved understanding of chemical reactions important to the formation of pollution in the atmosphere (LIN 06 119 51395, AAO October 25, 2007)
• president of a new company specializing in sales, servicing and export of consumer electronics (AAO April 03, 2012)
• freelance psychologist, evaluating juvenile delinquents for court (SRC 09 013 51678, AAO April 22, 2010)
• collegiate assistant coach, coaching track and field (SRC 08 092 53919, AAO March 15, 2010)
• senior engineer worked in liquid crystalline polymer (LCP) design and investigation with applications in aerospace, electronics and health (SRC 08 013 50981, AAO April 13, 2010)

Basically, it can be anything useful for what EB2 NIW petitioner can find evidence that it is beneficial for U.S. nation.

Evidence and supporting documentation

In order to meet substantial intrinsic merit applicant needs to support his / her statements by proper evidence. Documentation must clearly explain in layman’s language (nontechnical words) why his / her field of endeavor is important and what are the practical benefits and application (for example he / she found a new method, more efficient way etc.). Evidence should validate that his / her occupation area is in significant national importance and need to show how exactly the work is related and relevant to the national goal.

Documentation and supporting evidence may be submitted in the form of articles and other publications, historical documents, government resources, letters of recommendation from distinguished authorities etc.

Sliding scale

According to some attorneys, USCIS adjudicators may see the area of occupation not only as satisfying one of the necessary requirements but it may affect overall view of EB2 NIW petition (so called “sliding scale”). If the field of endeavor is obviously in area of higher substantial intrinsic merit they may more likely overlook some of minor weaknesses in applicant’s NIW case. So there may be slightly higher chance to be approved when working in more important areas (for example improving health may have little advantage against education). However, USCIS didn’t confirm this statement.

Rate of success

NIW applicants usually easily meet this criterion, because almost anything may be considered as substantial intrinsic merit. Thus it is not difficult to submit evidence in order to satisfy this requirement.