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National Interest Waivers (NIW)
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Historically, all but a few carefully defined classes of employment based immigrants have had to undergo the ordeal of obtaining an individual labor certification. In the 1970s, the Department of Labor promulgated something known as "Schedule A" - a collection of four principal groups of occupations for which the individual labor certification requirement was waived.
In 1991, as part of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Congress created a new statutory classification for which the individual labor certification requirement would be waived: the national interest waiver ("N.I.W."). Section 212(a)(5)(C) of the Immigration and Nationality Act states that a petition filed under the employment based second category ordinarily requires a labor certification. Section 203(b)(2)(B) of the same Act, however, provides that
``the Attorney General may, when he deems it to be in the national interest, waive the requirement * * * that an alien's services in the sciences, arts, professions, or business are sought by an employer in the United States.''
Initially, the I.N.S.. resisted the idea of defining specific criteria for N.I.W. eligibility. The I.N.S. said that it believed that it was appropriate to leave the application of the national interest waiver as flexible as possible and that each case should be judged on its own merits.
In 1995, the I.N.S. published a notice of proposed rulemaking in the Federal Register in an effort to create regulations governing the submission and adjudication of national interest waiver petitions. That rule proposed a common sense approach to the issue and, had it been adopted, would have brought consistency and legitimacy to I.N.S./C.I.S. adjudications of these petitions.
Unfortunately, the I.N.S. (and subsequently, the C.I.S.) failed to follow through on the proposed rule. Though the organic legislation creating this category became law more than fifteen years ago, there are no regulations in place establishing adjudications criteria.
A few years ago, the I.N.S. designated an administrative appeal decision in Matter of New York State Department of Transportation as a "precedent." This is highly unusual since this purported "precedent" decision is not based on lawfully promulgated regulations. Rather, it is a unilateral implementation of agency policy and a clear attempt to end run the Administrative Procedures Act, which requires regulations to be promulgated through public notice and comment.
Notwithstanding the publication of the N.Y.S.D.O.T. decision, as it has become known, the C.I.S. adjudicators are not even following the guidelines established there. The unfortunate fact of life is that it is often easier for a beneficiary to qualify for classification in the first preference category as an alien of extraordinary ability, than it is to qualify for a national interest waiver.
You can see how the CIS has incorporated this highly restrictive approach in the advice they provide in their Adjudicator's Field Manual:
4) National Interest Waiver of Job Offer.
Since 1990 the Act has provided that an alien of exceptional ability may obtain a "waiver of job offer" if such waiver is deemed by the agency to be in the "national interest." A subsequent technical amendment extended the job offer waiver to certain professionals. Since this waiver provision is included in section 203(b)(2) of the Act, it applies only to professionals holding advanced degrees and exceptional ability aliens. In fact, the regulations, at 8 CFR 204.5(k)(4)(ii) provide that a waiver of a job offer also includes a waiver of the labor certification requirement. The petitioner may file Form ETA-750, Part B, or Form ETA-9089, in duplicate, in support of the petition. Either form is acceptable.
Legacy INS initially proposed limiting the national interest waiver to occupations where self-employment is common or traditional or to an occupation in the DOL's pilot program. However, commenters to the proposed rule questioned whether the waiver of job offer really meant waiver of labor certification. Therefore, the final regulation deleted the requirement of self-employment or listing in the pilot program and states only that it must be shown that the waiver would be in the national interest.
Section 203(b)(2) of the Act requires that all aliens seeking to qualify as having exceptional ability show that their presence in the United States would substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States and adds the additional test of "national interest" to those who wish the job offer waiver. Neither Congress nor legacy INS defined the term "national interest" in either the Act or the regulations in order to leave the application of this test as flexible as possible. However, an alien seeking to meet the national interest standard must show significantly more than "prospective national benefit" required of all aliens seeking to qualify as having exceptional ability. The burden rests with the petitioner to establish that exemption from, or waiver of, the job offer requirement will be in the national interest. Each case is to be judged on its own merit.
In 1998, the Administrative Appeals Office (AAO) issued a precedent decision, Matter of In Re: New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998) (“NYSDOT”), which created a three-prong test for petitioners seeking a national interest waiver. You should remember that the purpose of these prongs is to set minimum requirements for activities that are in the national - not local - interest. These minimum requirements follow:
- Under the first prong of the NYSDOT test, the alien must seek employment in an area that has substantial intrinsic merit. In NYSDOT, the alien was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit. It is obvious that the protection of motorists and the maintenance of a highway system are activities of substantial intrinsic merit. By contrast, a person who is a juggler and asserts that he or she wishes to perform at children's birthday parties, might not meet this requirement. While the alien's proposed activity is not deleterious, it would be difficult to claim that such an activity has "substantial" intrinsic merit for purposes of establishing the "national" interest.
-
The
second
prong of
the
NYSDOT
test
requires
that the
waiver
applicant
demonstrate
that the
proposed
benefit
to be
provided
will be
national
in
scope.
There
are many
activities
which
have
positive
effects,
such as
job
creation
for a
local
community,
but may
in fact
have a
limited,
or even
negative,
national
impact.
For
example,
an alien
may be
sought
as a
loan
officer
for a
regional
bank.
The
alien’s
clients
may come
from
various
parts of
the
country,
but the
primary
purpose
of the
alien’s
employment
is to
benefit
the
regional
bank,
not to
benefit
the
nation
as a
whole.
The
principal
aim of
the
alien’s
activities
is to
benefit
the
bank,
not the
nation.
As
another
example,
an alien
may be
sought
to
manage a
waste
disposal
facility
for a
municipal
government.
That
facility,
however,
may be
contributing
to
pollution
of a
nearby
river.
While
the
alien’s
activities
might
result
in the
preservation
of local
jobs,
his or
her
activities
might in
fact
have a
detrimental
effect
on other
communities
lying
along
the path
of the
stream
or
river,
even
those
located
in other
states.
Therefore,
any
interest
in
hiring
this
person
would be
local at
best,
and
could
not be
deemed
to be
national
in scope
or in
the
“national”
interest.
On a related note, the basis for the waiver may not be the existence of a local labor shortage. The mere fact that the alien might fill a locally needed position - irrespective of the positive effect of such activity - does not qualify the activity as being in the national interest. While there exists a generalized national interest in providing jobs to all work authorized persons, the national interest waiver is a waiver of the labor certification requirement - it is not a substitute for this requirement. Congress specifically created the labor certification process in order to test the domestic local labor market. A shortage of qualified workers in a given field does not constitute grounds for a national interest waiver. Given that the labor certification process was designed to address the issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than waiving a labor certification. (As noted below, however, following issuance of the NYSDOT precedent, Congress created an exception for certain physicians who are working in medically underserved or needed areas).
-
Finally,
under
the
third
prong of
the
NYSDOT
test, it
must be
demonstrated
that the
national
interest
would be
adversely
affected
if the
employer
is
required
to
proceed
with the
labor
certification
process.
In order
to
satisfy
the
third
component
of the
test,
therefore,
it must
be shown
"that it
would be
contrary
to the
national
interest
to
potentially
deprive
the
prospective
employer
of the
services
of the
alien by
making
the
position
sought
available
to U.S.
workers."
In
addition,
NYSDOT
further
requires,
as a
condition
of
meeting
the
third
prong,
"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."
This
test
recognizes
that
there
can be
two
competing
"national
interests"
- the
national
interest,
as set
forth by
Congress
in
section
212(a)(5)
of the
INA, of
requiring
a test
of the
labor
market
versus
the
"national
interest"
in
fulfilling
a
permanent
need for
the
alien's
services.
Given
the
variety
of
occupations
potentially
covered
by the
waiver,
a single
set of
standards
applicable
to all
cases is
impractical.
Therefore
each
determination
must be
made on
a
case-by-case
basis
and will
depend
on an
assessment
of the
specific
facts
presented.
To meet the third prong, the petitioner might be able to demonstrate that the need for the alien’s services is so great that the national interest would not be properly served were the petitioner required to postpone employment of the alien until the labor certification process is completed. An example would be the need for an alien epidemiologist to work on prevention of an epidemic following a natural disaster. Obviously, time would be of the utmost essence in such a case.
It should be remembered that while the NYSDOT decision sets forth these three minimum criteria which must be met in order to establish eligibility for a national interest waiver, the presence of these factors, alone do not necessarily mean that you must grant the waiver. For example, an alien with a criminal background might meet the above criteria, yet still might not merit a discretionary grant of the waiver. You should consider all the facts presented in making your determination.
In addition to the above, you should also bear in mind the following general considerations with respect to adjudicating requests for national interest waivers:
- An alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education which could be articulated on an application for a labor certification.
- General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the U.S., cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic issue.
In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the alien’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the alien has few or no demonstrable achievements.
When a petition is denied because eligibility for the national interest waiver has not been established, you must give the petitioner the right to appeal that decision.
