EB2 NIW requirements (NYSDOT three pronged test)

After self judgement if applicant is eligible for EB2 NIW category, comes the most important part of NIW petition – proof of national interest.

According to USCIS website: You must demonstrate that it is in the national interest that you work permanently in the United States. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).

NYSDOT case was judged by AAO (The Administrative Appeals Office) and then USCIS adopted results as a binding precedent to determine requirements for national interest.

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement:

1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope.
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

This is key part of National Interest Waiver case and EACH of these criteria must be supported by evidence in EB2 NIW petition. We are focused on it in several following posts. We digged more into the NYSDOT and other published cases, learned from it and brought you more details for each of these points.