NIW #4:Ineffective LC Argument

Our office has conducted a careful survey of recently denied cases from the AAO (Administrative Appeals Office), and we have discovered that in many cases, there is usually a deficiency in the labor certification argument. We cannot stress enough that the primary purpose of an NIW based EB-2 petition is to attack the labor certification requirement by showing that you can benefit the national interest more than a similarly situated U.S. worker. (Please see our NIW Series #2 “The Outweigh Theory” posted on 4/07/06). It is apparent that most petitioners understand that they must address the labor certification issue, but in many cases, their arguments are weak, ineffective, and even worse, damaging to the overall effectiveness of the petition. Below, our office has compiled a list of the most repeated and ineffective labor certification arguments from the recently denied cases from the AAO. We also provide explanations as to why these arguments are unpersuasive to USCIS. A proper understanding of why these arguments fail will deepen your comprehension of what factors USCIS looks for when deciding whether or not to grant you a waiver from the labor certification process. Ineffective labor certification arguments can be divided into six basic categories. While the exact wording for each of the arguments differs depending on the petition, the basic premise for each argument remains the same and should be avoided. Argument A: “If forced to go through the labor certification process, the Petitioner’s nonimmigrant status will run out, and Petitioner’s nationally important research will be cut short” Why USCIS will find this argument unpersuasive: The NIW petitioner is not required to show that there is any urgency for the adjustment to lawful permanent resident status. Temporal considerations are not a part of the criteria that USCIS considers when adjudicating an NIW petition. If this argument were a factor, it would lead to the spurious conclusion that the work of a petitioner whose nonimmigrant status is about to expire is inherently more nationally important than a petitioner who just received their nonimmigrant status. Thus, labor certification arguments based on timeliness or urgency due to Petitioner’s nonimmigrant status do not carry any weight. Argument B: “Funding issues prevent the Petitioner’s employer from sponsoring the labor certification process.” Why USCIS will find this argument unpersuasive: Taking this argument to its logical conclusion would mean that at least partially, the NIW program must have been established for the benefit of employers who could not afford the financial burden of the labor certification process. This is most certainly not the case – working for an employer of modest means does not make your work any more or less in the national interest. Argument C: “The Labor certification process does not lend itself to aliens who, like the Petitioner, are post doctorate fellows. The very nature of post-doctorate work is that it is temporary and for a short duration. Accordingly, the only option for post-doctorate fellows to obtain immigrant status is to seek a national interest waiver.” Why USCIS will find this argument unpersuasive: If this argument in and of itself were given persuasive effect then it would mean that all post doc researchers would have an inherent advantage for an NIW approval. USCIS has stated time and time again that such a blanket waiver for any field of specialization will not be granted. While this argument may not harm your petition, do not place much stock on its persuasive effect. USCIS will look at each petition on a case-by-case basis and each petitioner must first show that he or she will serve the national interest on the merits of his or her own qualifications. The unavailability of the labor certification process might be given consideration in appropriate cases, but the petitioner still must prove their benefit to the national interest whether or not the position is temporary in nature. Argument D: “Petitioner’s employer is unable to seek a labor certification because its corporate headquarters has a firm policy against green card sponsorship. If this policy were not in place, Petitioner’s employer would gladly go through the labor certification process because Petitioner’s work is critical, not only to the employer’s interests, but the nation’s interest as well.” Why USCIS will find this argument unpersuasive: The employer’s decision not to utilize the labor certification process does not obligate USCIS to grant a waiver of the process to that employer’s employees. If this were so, every employer would make a policy against sponsoring labor certifications and opt for the NIW process. Argument E: “As demonstrated by the above data, scientists specializing in this type of nuclear physics are in high demand in this country. In fact, Dr. Smith, head of the National Energy Committee stated in a recent interview, ‘the shortage of nuclear physicists in this country is one of our most pressing needs in terms of national security.’” Why USCIS will find this argument unpersuasive: As stated above, eligibility for an NIW is dependent on the Petitioner’s own qualifications and not with the position sought. USCIS will not give a blanket waiver for any field of specialization. This argument is one of the more popular ones, and unfortunately, it is an argument that can injure your NIW petition. The labor certification program was put into place specifically to address worker shortages. By using the above argument, you are effectively claiming that there is a worker shortage in the area that the Petitioner works in, thus implying that a labor certification should be utilized for this case. This is the exact opposite of what you are arguing for in an NIW petition. Argument F: “The rare combination of experience and education recounted above demonstrates the unique skills of the of petitioner and proves her benefit to the national interest.” Why USCIS will find this argument unpersuasive: This argument is not incorrect as much as it is incomplete. USCIS will reject any argument that unique skills or knowledge warrant a waiver from the labor certification process. To USCIS, the petitioner’s unique skills or experience do not matter – what does matter is how petitioner’s skills, unique or otherwise, can benefit that national interest. To do this, you must show how petitioner’s specific accomplishments have influenced the field to a greater degree than a similarly qualified U.S. worker. If you present any of the above arguments into you NIW petition letter, it does not necessarily mean an automatic denial; however, by using these weak arguments you give USCIS a potential foundation for an RFE and you project the general impression that you do not fully understand the proper requirements for an NIW applicant. In summary, avoid using the above arguments in your NIW petition letter and follow the suggestions given in our previous article, NIW Series #2 “The Outweigh Theory.” Avoid superfluous arguments like those recounted above and focus instead on the essential element of an NIW petition – showing how you benefit the national interest more than other similarly qualified U.S. workers. As always, jclawoffice.com is committed to providing our readers with the advice and analysis they need to stay informed of even the most difficult aspects of immigration law theory. This is the fourth installment of a ten part series discussing the essential elements of a successful NIW Petition. Keep checking back for additional installments and new treatises on various subjects affecting you and your immigration issues. —————————————————————————————————— 陈丹虹律师事务所提供 Law Offices of Jean D. Chen 2107 N. 1st Street, Suite 300 San Jose, CA 95131 Tel: [phone] Fax: [phone] E-mail: [e-mail] www.jclawoffice.com