National Interest Waiver

 

Normally, if you qualify for the second employment-based (EB-2) category (Workers Holding Advanced Degrees and Persons with Exceptional Ability in the Arts, Sciences and Business), you are subject to the labor certification requirement. However, a limited exception exists if your entry into the U.S. would be in the "national interest."

Since the passage of the Immigration Act of 1990, INS refrained from publishing any precedent decisions regarding how to qualify for a National Interest Waiver (NIW)...until now. On August 7, 1998, the INS finally decided to provide some guidance on NIWs, and the decision, Matter of New York State Dept. Of Transportation, is depressingly restrictive.

Also, in an earlier non-precedent decision, the USCIS had enumerated the following seven factors in defining "national interest." (In light of the new, more restrictive decision, it is open to question whether these seven factors will continue to guide USCIS adjudicators.)

Would your employment...

- improve the U.S. economy?
- improve the wages and working conditions of U.S. workers?
- improve the education and training programs for U.S. children and under- qualified workers?
- improve health care?
- provide more affordable housing for young and/or older poorer U.S. residents?
- improve the environment and make more productive use of natural resources? or
- did you come to the U.S. at the request of a U.S. Government agency?

Additionally, the USCIS's decision, referred to as Matter of New York State Department of Transportation, held that an individual seeking a national interest waiver must satisfy three tests:

- The alien's work must be in an area of substantial intrinsic merit;
- The alien's proposed benefit must be national in scope; and
- The alien must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The alien must present a national benefit so great as to justify a waiver of the labor certification process.

The USCIS held that while the alien's work was in an area of substantial intrinsic merit and was national in scope, he did not establish that he would serve the national interest to a substantially greater degree than that of his colleagues. The USCIS's decision evidences an obvious preference for the labor certification process. Therefore, employers and self-petitioners can no longer tout the uniqueness of the alien's skills or the difficulty in finding workers with such skills as evidence for justifying a national interest waiver. According to the USCIS, that is exactly what the labor certification process was created for.