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) and EB1-B (Outstanding Researcher/Professor).

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