question for NIW 140 regarding unique skills

J

jmxu

Registered Users (C)
I am in the middle of preparing a self-petition for my NIW 140. However I have some questions regarding the skills. Can any one provide me some clues?

My boss provided me a recommendation letter stating that I have a background combining various backgrounds and thereby I possess a few unique techniques that very few people will be able to perform in US. Do you guys think it is OK for him to say this to support my NIW? I remembered that in labor certificate based immigration, you need to prove that no other people have these skillsets as you have therefore you are labor certified. But now that I am applying for a NIW, can we still claim that I posess skills that others do not have? If not, how should we reword this situation and make it positive for my NIW?

Please shed some lights onto my issue. I am really confused about it. Thank you very much!

fly
 
jmxu said:
I am in the middle of preparing a self-petition for my NIW 140. However I have some questions regarding the skills. Can any one provide me some clues?

My boss provided me a recommendation letter stating that I have a background combining various backgrounds and thereby I possess a few unique techniques that very few people will be able to perform in US. Do you guys think it is OK for him to say this to support my NIW? I remembered that in labor certificate based immigration, you need to prove that no other people have these skillsets as you have therefore you are labor certified. But now that I am applying for a NIW, can we still claim that I posess skills that others do not have? If not, how should we reword this situation and make it positive for my NIW?

Please shed some lights onto my issue. I am really confused about it. Thank you very much!

fly
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Uniqueness has nothing to do with NIW.

Brian
 
Your unique skills might help you in labor cert, but not in NIW. You can still show those unique skills in a particular way. In my case, we showed that previous american employees in my position could not do a good job. After I started working there, things improved dramatically. So even though the minimal qualifications for that job could have been met by many, the skillset I brought would be very hard to find and would do great harm to the govt agency if labor cert was required. This might not be applicable to your case, but something to think about. That should satify the 3rd test of NIW, in my opinion.
 
jllag1 said:
So even though the minimal qualifications for that job could have been met by many, the skillset I brought would be very hard to find and would do great harm to the govt agency if labor cert was required. This might not be applicable to your case, but something to think about. That should satify the 3rd test of NIW, in my opinion.
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Wrong. This is exactly what the famous New York DOT ruling is all about. It gets quoted in almost every NIW rejection.

Brian
 
leroythelion said:
Wrong. This is exactly what the famous New York DOT ruling is all about. It gets quoted in almost every NIW rejection.

Brian
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In your opinion, how would you overcome the 3rd test?
 
Why doesn't that satisfy the 3rd prong? The LC process would not succeed because there are americans who are minimally qualified to do the job. The national interest would be adversely affected if a labor certification were required for the alien since the LC would prevent the alien from getting GC.
 
heresmine said:
Why doesn't that satisfy the 3rd prong? The LC process would not succeed because there are americans who are minimally qualified to do the job. The national interest would be adversely affected if a labor certification were required for the alien since the LC would prevent the alien from getting GC.
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Heresmine, I agree with you. But Brian feels that it would actually harm the NIW case w.r.t the 3rd test. Maybe he can clarify what it takes to overcome the labor cert test.
 
jmxu said:
Brian, please clarify this for us. Thank you!

fly
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Sure.

Prior to the NY DOT decision (sometime in the late 90's), people used to get away with this arguement all the time. Now, the idea is you have to prove the national scope and that you are the *BEST* person in the world for the job, not the *ONLY* person for the job. The latter is what LC RIR is for. Just because you are on the only person who applied for the job does not satisfy the extraordinary ability required for NIW. This is why a lot of attorney prefer EB-1 EA to NIW...it's essentially the same requirements without needing to prove national scope.

Brian
 
I still don't get it

I still don't see why the argument above is not valid. Yes, you have to prove national scope, intrinsic merit and then the third prong...that the national interest would be adversely affected if a labor certification were required for the alien. I can be among the very best in a field where there are scores of people minimally qualified. Any effort at labor certification will fail and I won't get the job. Labor certification does not allow an employer to select the best person for the job. As long as I have proven the first two prongs, the national interest will be adversely affected. By protecting jobs for americans (the purpose of LC), the nation is deprived of my services.
 
heresmine said:
I still don't see why the argument above is not valid. Yes, you have to prove national scope, intrinsic merit and then the third prong...that the national interest would be adversely affected if a labor certification were required for the alien. I can be among the very best in a field where there are scores of people minimally qualified. Any effort at labor certification will fail and I won't get the job. Labor certification does not allow an employer to select the best person for the job. As long as I have proven the first two prongs, the national interest will be adversely affected. By protecting jobs for americans (the purpose of LC), the nation is deprived of my services.
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I never said your arguement is not valid. It just won't get you a NIW. I don't make the rules.

Brian
 
leroythelion said:
I never said your arguement is not valid. It just won't get you a NIW. I don't make the rules.

Brian
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Brian, here is a quote from the sticky you made.

"This factor in the approval of the NIW elucidates an important issue. The statute states that the Attorney General may waive the labor certification requirement in the national interest. In most cases, it is difficult to imagine why the labor certification process would be contrary to the national interest. One such case may be the nuclear reactor software scientist, whose work is time sensitive and could not await the laborious process. In general, however, the danger that the labor certification process presents to the national interest is that it may find an ostensibly qualified U.S. worker. That is to say, the labor certification process may harm the United States because it does exactly what Congress designed it to do, replace foreign nationals with U.S. citizens. In many cases, a particular foreign national is better suited to perform a given task than any citizen or permanent resident of the United States, despite the equality of measurable qualifications such as level of education or years of experience. The NIW category recognizes that the standards imposed by the statutory language do not allow for this reality."

Please note the bolded lines. Thats exactly what I was saying in my post. Please excuse me if I am STILL MISSING the point.
 
jllag1 said:
Brian, here is a quote from the sticky you made.

"This factor in the approval of the NIW elucidates an important issue. The statute states that the Attorney General may waive the labor certification requirement in the national interest. In most cases, it is difficult to imagine why the labor certification process would be contrary to the national interest. One such case may be the nuclear reactor software scientist, whose work is time sensitive and could not await the laborious process. In general, however, the danger that the labor certification process presents to the national interest is that it may find an ostensibly qualified U.S. worker. That is to say, the labor certification process may harm the United States because it does exactly what Congress designed it to do, replace foreign nationals with U.S. citizens. In many cases, a particular foreign national is better suited to perform a given task than any citizen or permanent resident of the United States, despite the equality of measurable qualifications such as level of education or years of experience. The NIW category recognizes that the standards imposed by the statutory language do not allow for this reality."

Please note the bolded lines. Thats exactly what I was saying in my post. Please excuse me if I am STILL MISSING the point.
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You're excused :-).
 
leroythelion said:
You're excused :-).
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"IMPORTANT NOTE: I am a Volunteer Moderator - one of you. I am not a lawyer. So please use this advice accordingly.".

Guess, should have looked at your disclaimer more closely. :) Will just have to take your disclaimer to heart, buddy.
 
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jllag1 said:
"IMPORTANT NOTE: I am a Volunteer Moderator - one of you. I am not a lawyer. So please use this advice accordingly.".

Guess, should have looked at your disclaimer more closely. :) Will just have to take your disclaimer to heart, buddy.
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Please let us know how things work out for you. Good luck.

Brian
 
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