NATIONAL INTEREST WAIVERS FOR THE CHOSEN FEW:
OBTAINING APPROVALS AFTER THE DECISION IN THE MATTER OF NEW YORK STATE DEPARTMENT OF TRANSPORTATION

I. INTRODUCTION

The national interest waiver, established by INA § 203(b)(2)(B), 8 USC § 1153(b)(2)(B), is for aliens who are members of the professions holding advanced degrees (or their equivalent) or who are of exceptional ability in the sciences, arts, or business. The classification is eligible for the waiver of the labor certification requirement, which is the basis of this article.

The national interest category is critical for many individuals who wish to avoid the labor certification process, but obtaining an approved petition presents many problems due to the lack of governing regulatory standards. There is no list of acceptable documents that can guide one in preparing these cases but there is a very short adjudication time if you get it right. The expedited processing time (30-120 days) for national interest waivers has become critical as some regions average well in excess of two to three years to process a standard labor certification. Many clients who now face the reality of "capping out" under their nonimmigrant categories, or have children who will be turning 21 prior to that time, look to the national interest waiver in lieu of the labor certification process. An additional advantage is that individuals in this category can self -petition.

II. RELEVANT REGULATORY PROVISIONS

A few definitions may be helpful before discussing other regulatory provisions. 8 CFR § 204.5(k) sets forth the initial evidence to be submitted:

The petition must be accompanied by documentation showing that the alien is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the arts, or business.
Profession means one of the occupations listed in § 101 (a)(32) of the Act, as well as any occupation for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.
 

To show that the alien is a professional holding an advanced degree, the petition must be accompanied by:

1. An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
2. An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five (5) years of progressive post-baccalaureate experience in the specialty .
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business-
 

To show that the applicant is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:

1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university , school, or other institution of learning relating to the area of exceptional ability;
2. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
5. Evidence of membership in professional associations; or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
The statute also allows that if the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility .

III. MATTER OF NEW YORK STATE DEPARTMENT OF TRANSPORTATION

The Office of Administrative Appeals, in the NYSDOT decision, established a three-prong test to determine whether a waiver of job offer is in the national interest. After NYSDOT, to meet the national interest threshold, a petitioner/alien must establish that:

1. He/she seeks employment in an area of substantial intrinsic merit;
2. The proposed benefit will be national in scope; and
3. The national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by first making the position available to U.S. workers.
 

The third standard can also be interpreted to require that the alien must:
establish that he/she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. It is not sufficient for the petitioner simply to enumerate the alien' s qualifications, since the labor certification process might reveal that an available U.S. worker has the qualifications as well. Likewise, it cannot be argued that an alien qualifies for a national interest waiver simply by virtue of playing an important role in a given project, if such a role could be filled by a competent and available U .S. worker. The alien must clearly present a significant benefit to the field of endeavor .

Individuals who are familiar with the June 6, 1995, INS proposed regulations intended to govern the national interest waiver, and who have been preparing their cases with reference to these articulated standards, will not find a significant change in the standard as articulated in NYSDOT. Those who have not, however, and yet still got approvals, should take heed of the change. NYSDOT in large part imposed substantially the same requirements without the benefit of formal rulemaking.

IV .PROCESSING ISSUES
 

In any submission, and in particular after NYSDOT, there are two basic factors that separate a successful national interest case from one that may fail.
The first is so apparent that it seems to have been largely forgotten, namely, good lawyering. Knowing which cases to take, and how to interpret the facts presented and in turn present them in a way to meet the standards (or trends in the case law) that define this category , is critical to success. The INS frequently cites in its denials Matter of Brantigan, which stands for the proposition that "the petitioner bears the burden of establishing eligibility for the benefits sought."

The second factor is more subtle. The case has to "feel right" to the reviewing officer. Supplementary information to service regulations implementing the Immigration Act of 1990 (IMMACT90) states:

The Service believes it appropriate to leave the application of this test as flexible as possible; although clearly an alien seeking to meet the [national interest] standard must make a showing significantly above that necessary to prove the "prospective national benefit" [required of alien's seeking to qualify as "exceptional".] The burden will rest with the alien to establish that exemption from or waiver of the job offer will be in the national interest. Each case is to be judged on its own merits.  So how can we address these important factors to assess in advance the likelihood of approval?