Case Study: a Rare NIW Case Where the AAO Rejected that the First Two Prongs of NYDOT Case Were Satisfied

by Victoria Chen, Esq., J.D.

Background: The petitioner seeks to classify the beneficiary pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), as an alien of exceptional ability or a member of the professions holding an advanced degree. According to the Form I-140, part 6, the petitioner seeks to employ the beneficiary as a “Financial Research Analyst for Alzheimer Treatments.” On the uncertified ETA Form 9089, the petitioner indicated that the beneficiary currently works for the petitioner as a “controller.” The petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien employment certification, is in the national interest of the United States.

USCIS Decision: The director did not contest that the beneficiary qualifies for classification as an alien of exceptional ability or a member of the professions holding an advanced degree, but concluded that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States.

AAO Decision:AAO analyzed the appeal in accordance with the NYDOT three-prong test:

1. Intrinsic merit: The AAO opined that the substantial intrinsic merit of the petitioner’s field was not documented. Since the field was an unproven and untested area, this prong is not satisfied.

2. National Scope: The AAO did not think the proposed benefits would be national in scope, either. The Office indicates that it is not enough to conceive of a means whereby the beneficiary’s work could eventually have a national impact. To hold otherwise would render the national scope requirement meaningless. Rather, the petitioner must demonstrate that the proposed employment is within a framework that typically has such an impact. The beneficiary works for a local residential care facility with no history of past national impact or connection to the major Alzheimer funding or research entities through which the beneficiary proposes to collaborate. Thus, the petitioner has not demonstrated that the beneficiary’s work for the petitioner will provide benefits that will be discernible at the national level.

The AAO then contributed to argue that the third prong of NYDOT case is not satisfied. Therefore, the Office dismissed the appeal.

from Chen Immigration Law Associates

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

Our Ten Thousand I-140 Approvals Provide Unprecedented Insight into the USCIS Adjudication Trend

With more than 47,000 EB-1A, EB-1B, EB-2 NIW and O-1 cases approved, we have first hand information on the manner in which the USCIS adjudicate I-140 cases. As the USCIS has constantly changed its adjudication standards for the EB-1A, EB-1B and EB-2 NIW categories, our firm's huge database of successful cases gives you unprecedented insight to USCIS adjudication trends. We carefully analyze the data for all of our cases and apply the results of our analyses toward giving our clients up-to-date advice and adapting our strategies such that we remain on par with the ever-shifting landscape of immigration law in the U.S. With us, you will always have access to important updates, strategies, and information so that you can make the most informed decisions about your case.

We Have Helped Hundreds and Thousands of Clients with Credentials and Backgrounds Similar to Yours

With our exceedingly large number of successful petitions, no matter what credentials you have, no matter your background and field of expertise, no matter your visa status or nationality, chances are we have helped hundreds or even thousands of clients just like you. Our clients are usually impressed with how well we understand their research and work. Our insight and understanding stems from the fact that we have handled many cases with elements similar to yours already, and this helps us devise the best strategies for each individual petition.

Vast Majority of Clients Came to Us Because of Referrals

For years, our firm has attracted new clients based solely on word of mouth, recommendations, and the positive collaboration experiences shared with them by their friends and family. We take pride in our reputation and work hard to ensure that we provide a green card application experience that our clients are happy to share with their friends and colleagues. That is how our approved cases grew from 600 in 2013 to over 47,000 in 2023.