National Interest Waivers: A Practice Update

Table of Contents

Introduction

A. Background

    1. Statute

    2. Legislative History

    3. INS Regulations

    4. AAO Decisions

        a. Mississippi Phosphate

        b. New York State Dept. of Transportation (“NYSDOT”)

    5. What does NYSDOT really mean

        a. “Substantial intrinsic merit.”

        b. “National in scope.”

        c. Comparing Beneficiary to Others: “Substantially greater degree.”
 

B. Practice Tips at the Service Center Level.

    1. Focusing the Attention of Service Center Adjudicators on What AAO Intended the Third-Prong Test of the Beneficiary to be.

    2. Using Non-Precedent AAO Decisions to Win Your Case.

By Cletus M. Weber [footnote 1]

NOTE: This practice update is based on a paper that Peng & Weber Co-Founder and Partner, Cletus M. Weber, wrote with San Francisco attorney Ron Wada in 2002.[footnote 2]  The excerpt below includes only the materials originally written by Mr. Weber, discussing the current state of the law and practice regarding National Interest Waivers.  The full article was previously published as C. Weber & R. Wada, "National Interest Waivers - a 2002 Practice Update," 7 Bender's Immigration Bulletin, 391 (2002) and republished as a book chapter in Homeland Security, Business Insecurity: Immigration Practice in Uncertain Times, 23-30 (AILA 2003). Mr. Weber also presented this paper at the 2003 Midyear Conference for the American Immigration Lawyers Association, "Business Immigration: The Challenges of Practicing In Today's Recessionary Environment" in Cancun, Mexico in January 2003. Although this article was written for other attorneys and should not be relied on as legal advice, general readers should find the excerpt below to be a helpful introduction to National Interest Waiver law. 

Introduction

With the computer industry having suffered its worst year in recent history and the jobless rate climbing higher, obtaining permanent residence through labor certification may become increasingly difficult.  As a result, employers and employees may be tempted to look more closely at alternatives to labor certification, particularly the national interest waiver (“NIW”) provision.  Also, even with portability a reality and faster processing times on the horizon, employees might consider such alternatives to labor certification as insurance against the negative impact of untimely layoffs in today’s economy.  Finally, some employees simply have no choice but to go with an alternative to labor certification.  Most notably, Ph.D. students and postdoctoral researchers typically cannot apply for labor certification (or petition for classification as an “outstanding professor or researcher”) because they lack the required permanent “job offer.”  In all of these circumstances, an NIW might (or might not) be a good alternative to labor certification.

This paper covers some of the issues that arise with national interest waiver cases, before or without regard to any appeal to the Administrative Appeals Office (“AAO”).  First, it dusts off the national interest waiver provision [footnote 3] and gives a brief history of its first decade or so of existence, including the current state of the law and practice. Second, it provides practice pointers on winning approval of national interest waiver cases in today’s environment. 

Background of NIW Law and Current Practice

A. Background

            National interest waiver law is very cryptic, and what is really required to achieve approval of an I-140 based on a request for a national interest waiver is not readily apparent from applicable law.  Nonetheless, it is important to know at least what the statute, regulations, and the AAO say the law is.

1. Statute

The national interest waiver provision was established by the Immigration Act of 1990 (“IMMACT 90”) and is codified at section 203(b)(2) of the Immigration and Nationality Act (“the Act”), 8 U.S.C. §1153(b)(2).  Section 203(b) of the Act states in pertinent part:

          (2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability. –

(A) In General. – Visas shall be made available . . . to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or the welfare of the United States, and whose services in the sciences, arts, or business are sought by an employer in the United States. 

(B)   Waiver of a job offer. – The Attorney General may, when he [or she] deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien’s services in the sciences, arts, and professions, or business be sought by an employer in the United States.

One can glean from the statute that the threshold to be considered for a national interest waiver is that the beneficiary be either “a member of the professions with an advanced degree” – read master’s degree or higher – or someone with “exceptional ability in the sciences, arts or business” – which for all practical purposes is subsumed by the larger requirement of the national interest waiver itself.  (The particulars of what constitutes “exceptional ability” – not to be confused with extraordinary ability, as in first-preference “aliens of extraordinary ability” – can be found at 8 C.F.R § 204.5(k)(2).) In addition, it is clear from the statute that the Attorney General (i.e., the INS) can grant a national interest waiver (i.e., approve the petitioner’s I-140 petition) if the Attorney General “deems it to be in the national interest.”

2. Legislative History

Congress did not provide a specific definition of “in the national interest.”  The best that can be had is a committee report of the Senate Committee on the Judiciary, which merely noted that the committee had “focused on national interest by increasing the number and proportion of visas for immigrants who would benefit the United States economically and otherwise. . . .” S. Rep. No. 55, 101^st Cong. 1^st Sess., 11 (1989).

3. INS Regulations

Without congressional guidance, the INS regulations likewise lack any definition of “in the national interest.”  The supplementary information to its regulations implementing IMMACT 90, published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), simply professes an interest in flexibility:

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 by aliens 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.

4. AAO Decisions

There are primarily two relevant AAO decisions on national interest waivers: a non-precedent decision referred to as Mississippi Phosphate, EAC 92 091 50126 (AAU July 21, 1992) and New York State Department of Transportation, Int. Dec. 3363 (Comm. 1998), which has been designated a precedent decision. Although not yet available in hardbound I&N, the NYSDOT decision can be obtained from several other sources, including 1998 Lexis 26, 19 Immig. Rptr. B2-93, and the Peng & Weber website.

a. Mississippi Phosphate

In Mississippi Phosphate, the AAO listed several examples of the kind of work that might be deemed to be “in the national interest”:

·        improving the U.S. economy;

·        improving wages and working conditions of U.S. workers;

·        improving education and training programs for U.S. children and underqualified workers;

·        improving healthcare;

·        providing more affordable housing for young and/or older, poorer U.S. residents;

·        improving the environment of the U.S. and making more productive use of natural resources; or

·        involving a request from an interested U.S. government agency. 

Although the decision provided practitioners with at least some categories in which to try to pigeonhole their cases, it did not clarify whether adjudications were supposed to be focused on: a) how significant is the “national interest” of the work itself; b) how qualified and accomplished is the individual beneficiary; or c) some combination of these two factors.  Adjudications continued to vary considerably for several years, but decisions seemed to be rendered primarily on a combination of both the work and the individual.  The primary focus, however, seemed to be on the ability of the individual to make a significant impact on the field of national interest (as opposed to how significant was the “national interest” in the work itself).

b.  New York State Dept. of Transportation (“NYSDOT”)

In 1998, the AAO formally designated as a precedent decision its opinion in Matter of New York State Dept. of Transportation, Int. Dec. 3363 (Comm. 1998).  NYSDOT has ever since been “the law of the land” in national interest waiver adjudications. It lists the three factors to be considered in adjudicating a request for a national interest waiver:

• First, the petitioner (whether the employer or a self-petitioner) must show that the beneficiary seeks employment in an area of work that is of “substantial intrinsic merit.”
• Second, the petitioner must demonstrate that the proposed benefit will be “national in scope.” 
• Finally, the petitioner must, on a general level, show that the “national interest” in granting the national interest waiver is greater than the national interest in requiring an approved labor certification.  “Stated another way,” however, on a more specific level, the beneficiary must establish that the beneficiary will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”

5.  What does NYSDOT really mean?

Much has been written on NYSDOT and its three prongs, so only a brief analysis of the prongs is provided here.  As will be seen below, however, the most difficult prong to prove from a practitioner’s perspective is the third prong. 

a. “Substantial intrinsic merit.”

The first prong (“substantial intrinsic merit”) is typically easy to meet.  If someone is being paid to do a particular kind of research or if the work has at least some sort of artistic or other value, one should be able to fashion a successful argument that the work is of “substantial intrinsic merit.”  Although adjudicators typically accept reasonable arguments, the beneficiary’s work itself does seem to affect (favorably and unfavorably) the adjudicators overall view of the case.  That is, arguments and evidence will get the petitioner over the threshold level of “intrinsic merit,” but that does not mean that adjudicators are blind to the underlying substance of the work.  For example, adjudicators still seem to be more willing to overlook minor weaknesses in cases where the intrinsic merit is obvious (e.g., cancer research) than where the intrinsic merit is there but not quite as direct (e.g., teaching English as a second language).  Perhaps one might think of the first prong as somewhat of a “sliding scale” in which the higher the merit of the work, the more likely the adjudicator is to approve a case even though the respective beneficiaries are equivalent in all other respects.[footnote 4]

b. “National in scope.”

The second prong (“national in scope”) can be thought of as an extension of first-year law school discussions of the Commerce Clause: if one can demonstrate a reasonable nexus with a geographic area outside of the beneficiary’s place of work, that nexus should be sufficient to satisfy the second-prong test.  For example, NYSDOT itself was a decision with respect to a bridge engineer who apparently worked on bridges only in New York state, but because those bridges are used by people from around the country, that was deemed to be “national in scope.”  As noted elsewhere, however, professionals whose application of skills is to a specific clientele who are geographically confined typically fail to meet NYSDOT’s second prong.  Also, as discussed by others, there appears to be a subtle link between the second and third prongs, much as there appears to be between the first and third prongs.  That is, the weaker the national scope, the less likely the case is to be approved for otherwise equivalent beneficiaries.  

c. Comparing Beneficiary to Others:
“Substantially greater degree.”

Arguably, the third prong is relatively clear from the language and logic of NYSDOT itself, but there has been some unfortunate confusion at the Service Center level.  The topic is an important one and is discussed in more detail below in the next section.  As background, though, it is important to understand several points about the third prong.  First, it essentially states that the petitioner must prove that the beneficiary will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”  Second, it is the most difficult prong to meet.  Finally, although there is some wiggle room in what is meant by the phrases “substantially greater degree” and “same minimum qualifications,” it can be extremely helpful to try to direct the INS – especially at the Service Center level – to focus on this specific version of the third prong (i.e., the beneficiary vs. an imaginary U.S. worker with the “same minimum qualifications”) instead of on the general overview version of that prong (i.e., the relative importance of Congress’s enactment of the national interest waiver provision vs. Congress’s enactment of the workforce-protecting labor certification process).

B. Practice Tips at the Service Center Level.

The “substantially greater degree” prong in NYSDOT seems to have caused some confusion at the Service Center level.  With a little forethought and creativity, one can help the Service Center adjudicator to rise above this confusion to see the merits of a particular case.

1. Focusing the Attention of Service Center Adjudicators on What AAO Intended the Third-Prong Test of the Beneficiary to be.

The NYSDOT opinion discusses many different topics and tries to span a broad river of NIW issues and concerns. This is particularly true of the third prong, which tries to cover the general, theoretical congressional policy underlying the third prong and also articulate the specific, practical test to be applied in adjudicating actual cases.  The broad general discussion of the third prong is essentially this:

The final threshold is therefore specific to the alien.  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.  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 making available to U.S. workers the position sought by the alien.  The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest.  An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.

NYSDOT, slip op. at 7. 

The specific, practical test to be applied in adjudicating NIW cases reads as follows:

Stated another way [i.e., to show that a national interest waiver is warranted], the petitioner, whether the U.S. employer or the alien must establish 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. 

NYSDOT, slip op. at 8. 

One technique that can be successful is simply to try to focus the service center adjudicator’s attention on this specific, practical version of NYSDOT’s third prong. 

After all, the “stated another way” phrase appears to signal that the “substantially greater degree” test is the test the AAO intended the service center adjudicators to apply.  We believe this is also the reason the AAO appears to use a more reasonable approach than the service centers.  Where many service center adjudicators diverge from the AAO is the service center’s focus on the completely theoretical background discussion that precedes the “substantially greater degree” test.  That preliminary discussion focuses on the competing general importance that Congress placed on: a) the labor certification process (i.e., protecting U.S. workers); and b) the need to have the national interest waiver alternative (i.e., the need to grant permanent resident status when the national interest in doing so outweighs the potentially negative impact on U.S. workers).  Some service center adjudicators try to apply this theoretical test on the practical level.  This effort amounts to the logical equivalent of a test of whether baseball is more important than football.  (Of course, the petitioner has the burden of proof.)  By focusing the service center’s attention on the practical “substantially greater degree” test, one can focus the service center’s attention on how the particular beneficiary’s qualifications, achievements, and so on clearly demonstrate that he or she meets this test.  To attempt to demonstrate on the theoretical (i.e., labor certification vs. NIW) level is to allow one’s petition to drift away from the critical facts that show how the particular beneficiary qualifies for a national interest waiver.

2. Using Non-Precedent AAO Decisions to Win Your Case.

Because non-precedent AAO decisions are not published, it is prudent to assume that service center adjudicators are not aware of them.  Also, simply because an AAO decision is unpublished and therefore is not binding on service center adjudicators, does not mean that it has no persuasive capacity.  We have obtained approval of several NIW petitions by both service center and District Office adjudicators by showing the adjudicators that the AAO approved a case with very similar facts, and providing relevant case identification information.  For this reason, copies of AAO decisions and published digests of unpublished NIW approvals can be quite useful when formulating an application.   

[footnote 4] Interestingly, the INS seems to have hinted at such “sliding scale” adjudications with respect to “intrinsic merit” even before the 1998 NYSDOT decision. See, e.g., Nathan A. Waxman, “A Distinction Without a Difference?  Misapplication of Exceptional and Extraordinary Ability Evidentiary Standards to Adjudication of National Interest Waiver Petitions of Advanced Degree Professionals,” 1998-1999 Immigration and Nationality Law Handbook (Vol. II.) 194-214 n.72 (citing Matter of [name not provided], A75 258 488 (AAU June 13, 1997) (Nebraska Service Center) as evidence that INS has “grudgingly conceded that different areas of endeavor warrant different weighting”). Practitioners might also find this particular article very helpful for its “tactical suggestions” for how, practically speaking, to obtain NIW approvals.  Id. at 212-214.

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