The Situation
My client was a physicist who paid for his own research. For decades his business in an unrelated field had funded it, much of the work free of the grant cycle and institutional politics that govern most science. That freedom left gaps in his research employment record. He wanted to bring the work, and his family, to the United States.
Each of the standard pathways for a scientist had a problem in his case.
EB-1A would have required sustained national or international acclaim. He had the credentials, some acclaim; the gaps were the liability.
An EB-1B or a conventional EB-2 with PERM labor certification would each have required a sponsoring employer with a job offer. He had none, and both would take too long; but the biggest drawback was their dependence on others.
The National Interest Waiver was the best fit. The argument for it, however, was not the usual one.
The Strategy
I filed an EB-2 petition for an advanced-degree professional, seeking a national interest waiver of the job offer and labor certification. INA § 203(b)(2)(B)(i).
At the time, the waiver was governed by Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), since superseded by Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). The first two prongs, substantial intrinsic merit and a benefit national in scope, were not in question. The case turned on the third: whether my client would serve the national interest to a substantially greater degree than an available U.S. worker with the same minimum qualifications.
My client’s research was in Mössbauer spectroscopy, which uses gamma-ray absorption to probe minute changes in atomic nuclei. He had pursued it for decades, much of that work self-financed through his business. He worked on magnetic intermetallic compounds, the materials behind high-strength permanent magnets, sensors, magnetic recording, and biomedical applications.
The research was over my head. It would be over the head of any adjudicator who was not a physicist. So I simplified. The waiver argument came down to one point that needed no physics to grasp: the data.
He had built up a body of experimental data that existed nowhere else and that no rival group had matched. His findings were in the literature; the underlying data was not. Reproducing it would have taken years and, by my conservative estimate, millions of dollars, even for a well-funded U.S. laboratory.
An American with the same credentials would still lack the data. My client had it. He could put it to work on arrival; his equal would be starting from zero.
That was the whole argument. Not the prestige of his publications, not his citation count, but the data no one else had.
The Result
The RFE that came back conceded the merit of the work and never seriously contested the data. It asked the ordinary question instead: what, exactly, would he do here. I answered it. NIW approval in under six months.