The Physician Resident was running out of H-1B time and approached us because a previous I-140 Petition (NIW) seeking a waiver of the job offer – INA § 203(b)(2)(B), had just been denied. His 6 years were up and he had no way of extending his H-1B. He was also on the verge of losing a very valuable fellowship. All in all, he was a desperate man looking for a crack team to solve his problems.
The first task was finding a way to keep the good doctor in the country in order to allow him to accept the prestigious fellowship that he was being offered. Second, we had to come up with a long term solution that did not involve sponsorship by the Hospital where he was completing his residency. The Office went about devising a two-pronged strategy.
The O-1 Petition was successfully filed showing IR as an evolving field with unlimited scope for research; the candidate’s preliminary, but original scientific research into PAD was highlighted and presented as the basis for qualifying him as an Outstanding Physician/Scientist. His role as peer reviewer of a prestigious medical journal along with his membership in an organization requiring outstanding achievements of its members was also presented. Finally, six letters supporting the petition were submitted to highlight various aspects of the Physician’s past research and achievements. The petition itself was premium processed and approved without an RFE.
The NIW petition was developed concurrently, but filed subsequently. The Office paid special attention to addressing Matter of New York State Dept. of Transportation 22 I&N Dec. 215 Act. Assoc. Comm. (the precedent case for guidance and clarification in all “national interest” cases). Three specific factors were discussed in that case. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Second, it must be shown that the proposed benefit will be national in scope. Third, the petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. Although, the Physician was employed in a Health Professional Shortage Area and the petition probably satisfied the first two criteria readily, care was taken to discuss in detail the factors that merited consideration to satisfy the final and most important prong – that waiving labor certification would not adversely affect U.S. workers. The Petition was approved without an RFE.