Guidance on NIW Cases Due to NYSDOT Case
Posted Nov 16, 1998

Some of you aware of a recent case known as Matter of New York State Department of Transportation (NYSDOT), decided in August 1998 by the Board of Immigration Appeals, which sets forth new and stringent criteria for deciding National Interest Waiver (NIW) cases for obtaining permanent resident status. The INS has issued its comments on the NYSDOT case.

INS has emphasized that the usual route to an employment-based green card is through labor certification, complicated and time-consuming as that may be. In order to justify departing from the usual process and making an exception in a particular case, an extremely strong showing is needed that the particular individual's contributions are of great value to the nation. Every day, the Law Office of Sheela Murthy receives e-mails from those with advanced degrees and those who could be considered to be of exceptional merit who are hoping to qualify in the NIW category. Lately, we have been advising many applicants that the INS is reviewing these cases more closely and using a higher standard than in the past. Clearly, merely intending to avoid the labor certification cannot be and was never allowed to be the sole criteria to qualify in the NIW category.

On an issue of major interest to medical doctors in particular, INS also mentioned that physicians who practice in a medically under served area do not automatically qualify for the NIW. This type of scenario may well qualify for a J-1 waiver, but it is not an automatic route to NIW and therefore towards permanent residence. This seems to be a modification in the practice of most of the INS Service Centers.

Other general pointers for NIW cases from INS are as follow:

a) make sure the testimonial letters are from experts in the field and not merely friends and colleagues;

b) researchers in the private sector tend to have a higher burden of proof because they have to show that their efforts benefit the country as a whole, not merely a particular company and its financial impact on a specific employer.

The Law Office of Sheela Murthy will be addressing the issues raised in this case with the INS. Some of the major concerns we have pertain to the fact that the INS is reading the NIW statute narrowly when the U.S. Congress intended for it to have a broad interpretation, and the attitude of the INS that the delay in approving labor certifications is the problem with the U.S. Department of Labor (DOL) and should be sorted out by the DOL and it is not the problem of the INS. In which private company or business, can a person point fingers at another company and expect to stay in business? Some of the points raised by the INS are valid and have been the practice generally by most well known attorneys but there are other sweeping generalities like the INS not giving as much credence to experts from the same nationality as the beneficiary, alluding that even leading exerts from the same nationality cannot be unbiased experts who will be given credibility by the INS. This case will certainly be appealed and will be subject of much analysis and debate over the next several months.