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Seeking opinions on choice of strategy for NIW

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  • Seeking opinions on choice of strategy for NIW

    Good day,

    I am at the stage of having received the request for evidence for my I-140 self-petition with NIW.

    I can think of two strategies to use in my reply, and I am strongly leaning towards one of them, but I thought I would ask for opinions/experiences before I make my final decision.

    The basic point is that I am weak on two specific requests of the RFE: 1) To be sustantially above exceptional (I could argue that I am exceptional (I have applied under the advanced degree category), but I am not so sure about claiming to be subtantially above that. 2) To have an impact on the field "as a whole".

    The strategies are:

    1) Attempt to demonstrate that I specifically meet these two requirements as best as I can, or downplay (i.e. not mention them)

    2) Admit outright that I may not meet these requirements, but argue that they are not mandatory, and that I still clearly meet the intent of NYSDOT (I already have a legal brief prepared). In particular, my employment still has clear national scope (in another way than by impacting the field as a whole), and I have pretty solid arguments that I do meet the two other expressions of the NYSDOT "third threshold", that the NI would be adversely affected if labor certification was required, and that I will serve the NI to a substantially greater degree than would an available worker having the same minimum qualifications, for that particular employment.

    I am strongly leaning towards option 2, because it basically removes from the INS the option to simply say that I do not meet the requirements, since I have already admitted it myself. They pretty much have to respond to my argument about the intent of the statute and of NYSDOT, about which I think that I am on more solid ground.

    I realize that a lawyer will tell me that he/she cannot answer either way without knowing more about the case. I am not looking for a "do this" or "do that" answer, since the decision is mine in the end. I am looking for general comments such as if the general approach suggested in (2) has worked in the past for other cases.

    Somebody I discussed the case with feels that my brief is basically telling the INS that they don't know what they are talking about (that's maybe partly true), and that this might predispose them to being unfavorable. Any opinion on that?

    Thanks for any comments,


  • #2
    I feel I need to expand on my interpretation of the NYSDOT third threshold.

    My reading of NYSDOT is that the third threshold contains these three elements:

    a)&nbsp &nbsp &nbsp &nbsp “persuasively demonstrate that the national interest would be adversely affected if labor certification were required for the alien”
    b)&nbsp &nbsp &nbsp &nbsp “must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.” … “The alien must clearly present a significant benefit to the field of endeavor.”
    c)&nbsp &nbsp &nbsp &nbsp “make a showing significantly above that necessary to prove the ‘prospective national benefit’ required of all aliens seeking to qualify as ‘exceptional’”

    Elements b and c are somewhat related. C seems like a stronger statement of b. It is also strange that c actually dates from the 1991 supplementary information (56 Fed. Reg. 60897,609000, November 29, 1991). I assume that this supplementary information did not have as much legal weight as the NYSDOT precedent desision, which is maybe why it did not seem to make NIW cases very difficult between 1991 and 1998.

    Am I correct, legally speaking, that although NYSDOT does not specifically says so, the first element, a, is the most fundamental one (and therefore the only truly mandatory part of the NYSDOT third threshold), and that the other two are increasingly specific amplifications of that fundamental requirement?

    In my case, I can convincingly argue that a and b are met (in particular, waiting for a labor certification is not merely inconvenient in this case -- I will pretty much not be able to do my job until I get the Green Card), but I am weak in the area of c, which is why I need to argue that c is not mandatory.