How to Argue an National Interest Waiver Case: precedent The New York State Department of Transportation (NYSDOT)

1998, the INS designated the decision in the New York State Department of Transportation (NYSDOT) as the first precedent decision to address the national interest waiver (NIW). Under NYSDOT, a waiver applicant is now required to

  1. Show that he/she seeks employment in an area of substantial intrinsic merit,
  2. Show that the proposed benefit will be national in scope, and
  3. Demonstrate that the national interest would be hurt if labor certification were required or in other words, establish that he/she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. In NYSDOT, the petitioner was an alien employee with a master’s degree in engineering whose area of expertise was bridge design.

The alien’s employment in the field of bridge design and repair easily met the first “substantial merit prong” of the NYSDOT framework, due to the apparent importance of bridges. However, there is no discussion in the decision on how this prong will be applied in the future. The AAO found that the petitioner met the second prong (that the proposed benefit be national in scope), since New York bridges are an important component of the national transportation system. NYSDOT says that occupations that benefit regional or local interests alone are not sufficient. A result of the “national in scope” requirement is that many who once qualified for the waiver of a job offer and labor certification can no longer do so despite offering a clear benefit to the national interest as a whole. For example, primary care physicians serving in underserved areas are hurt by NYSDOT, since the benefits of providing primary care to local areas may not directly impact the nation as a whole.

The third prong of NYSDOT requires aliens to demonstrate that they will serve the national interest by engaging in their field of endeavor “to a substantially greater degree than would an available U.S. worker having the same minimal qualifications,” and calls for justification as to why a labor certification would be inappropriate. A demonstrated history of past accomplishments exceeding those needed in the occupation along with the alien’s significant and not merely participatory role is required. Overall, it must be demonstrated that the aliens’ services in the past have contributed to the field of endeavor in some quantifiable way. This requirement disqualified the petitioner in NYSDOT. However the AAO found that appeals by medical researchers active in investigating the genetic etiology of diseases satisfied the third prong.