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National Interest Waiver

Since the introduction of the "national interest" waiver through the Immigration Act of 1990, the INS' Administrative Appeals Unit (AAU) has decided a number of national interest waiver cases, beginning with the Mississippi Phosphate case. In that decision the AAU enumerated several activities, any one of which it felt had a sufficient impact on the "national interest" of the United States to warrant granting a waiver of the labor certification requirement. The seven criteria are:

1) Improving the U.S. economy
2) Improving wages and working conditions of U.S. workers
3) Improving education and training programs for U.S. children and under-qualified workers
4) Improving health care
5) Providing more affordable housing for young and/older, poorer U.S. residents
6) Improving the environment of the United States and making productive use of natural resources
7) A request from an interested U.S. Government agency.

Following the AAU's decision in New York State Department of Transportation ("NYSDOT"), the beneficiary of a petition requesting a waiver of the labor certification in the national interest must also establish that:

1) The alien's proposed benefit must be national in scope;
2) The alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications;
3) The alien's work is in an area of substantial intrinsic merit.

INS Headquarters subsequently issued a directive that National Interest Waivers approved prior to the AAU's decision in Matter of New York State Department of Transportation (Int. Dec. 3363) (August 20, 1998) "should be honored" and should not be reopened for rescinding approval of the national interest waiver or for requiring the petitioner to now prove entitlement under the more stringent NYSDOT standard.

INS Service Centers have indicated that the following factors are also used in evaluating an applicant's eligibility for a National Interest Waiver:

1) Those seeking qualification for a waiver of labor certification based on services considered in the national interest must make a showing significantly above that to prove "prospective national benefit" required of all aliens seeking qualification as exceptional. It applies only to aliens who will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States.
2) National interest cases require that the emphasis rest with the overall value and potential of the beneficiary's individual contribution to the U.S. -- not the fact that they are working in a field of "high national interest." The alien may qualify by being found to be a "key" or "critical" member of a team if it can be shown that the team function would be severely impaired without this member. Merely working in an area of national interest does not necessitate a finding of national interest qualification.
3) [INS] highly recommends the submission of better testimonial letters from substantial, recognized national or international organizations/institutes/ government agencies with the expertise to definitely say that the work or contribution of the individual truly is in the national interest. The authors of these third-party testimonial letters should clearly state how they came to be familiar with the alien's work.
4) When accompanied by these improved "advisory opinions" and when focused on the individual, time will be saved and returns for evidence will be reduced. Also, placing the testimonial evidence with the attorney/petitioner summary letters at the front directly beneath the Form I-140 will eliminate examiner time spent wading through academics articles, field surveys, general reports, etc., which often add minimal weight to bolster the claim for his/her specific achievements or individual national interest potential.
5) INS sees many claims for graduate students who have not had enough time or experience as a researcher or engineer in order to qualify for E21 category and have done little, outside the work required to complete their degree. Often the claim is made that their area of research is so potentially "cutting edge" or so significant that it must be in the national interest. In accordance with established criteria, it should be very difficult for the above-described person to qualify. The National Interest Waiver category is not designed for all graduate researchers to qualify.
6) Our officers look for realistic evidence of "substantial prospective benefit" to a national interest item or agenda which specifically sets the alien apart from others in the field.

 

 


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