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Regarding National Interest Waivers

by Joseph P. Whalen

The following excerpt was pulled from a non-precedent AAO decision found at this link: Apr222011_01B5203.pdf , but much of the discussion is ubiquitous throughout many similar decisions. This is reasonable given that there is only one pertinent Precedent Decision dealing with the National Interest Waiver (NIW) provision. It is also important to note that Congress did revise the statute after the issuance of that single Precedent and they carved out only one specific type of case to be treated differently, namely, certain physicians who have various other legal hoops to jump through.

"Neither the statute nor pertinent regulations define the term "national interest" Additionally, Congress did not provide a specific definition of "in the national interest" The Committee on the Judiciary merely noted in its report to the Senate 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, 101st Cong., 1st Sess., II (1989).

A supplementary notice regarding the regulations implementing the Immigration Act of 1990 (IMMACT). published at 56 Fed. Reg. 60897, 60900 (Nov. 29, 1991). states, in pertinent part:

The Service believes it appropriate to leave the application of this test as t1exible 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 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.

Matter of New York State Dep't. of Tramp, 22 I&N Dec. 215, 217-18 (Comm'r. 1998) (hereinafter "NYSDOT"), has set forth several factors that U.S. Citizenship and Immigration Services (USCIS) must consider when evaluating a request for a national interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial intrinsic merit Id. at 217. Next, the petitioner must show that the proposed benefit will be national in scope. Id. Finally, the petitioner seeking the waiver 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. Id. at 217-18.

It must be noted that, while the national interest waiver hinges on prospective national benefit, the petitioner must establish that the alien's past record justifies projections of future benefit to the national interest Id. at 219. The petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit The term "prospective" requires future contributions and does not facilitate the entry of an alien with no demonstrable prior achievements. and whose benefit to the national interest would thus be entirely speculative. Id.

The AAO concurs with the director that the petitioner works in an area of intrinsic merit, theoretical chemistry, and that the proposed benefits of her work, improvements to materials science and drug development, would be national in scope. It remains, then, to determine whether the petitioner will benefit the national interest to a greater extent than an available U .S. worker with the same minimum qualifications.

Eligibility for the waiver must rest with the alien's own qualifications rather than with the position sought. In other words, the argument that a given project is so important that any alien qualified to work on this project must also qualify for a national interest waiver is not persuasive. NYSDOT, 22 I&N Dec. at 218. Moreover, it cannot suffice to state that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or training does not inherently meet the national interest threshold. The issue of whether similarly-trained workers are available in the United States is an issue under the jurisdiction of the Department of Labor. Id. at 221.

At issue is whether this petitioner's contributions in the field are of such unusual significance that the petitioner merits the special benefit of a national interest waiver, over and above the visa classification she seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of achievement with some degree of influence on the field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, the AAO notes that original innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7."

I disagree with the following statement in the decision because it falls short of being useful and ignores the foundation that the statute and Committee Report provide upon which to build a workable framework. In other words, I feel that the following sentence is a cop-out.

Neither the statute nor the pertinent regulations define the term "national interest."

On the contrary, in addition to the statement from the Committee Report quoted and highlighted above, the actual statute, at the very least provides categories within which to define the contexts of "national interest" in which to demonstrate the desired prospective benefit to be made by qualified EB-2 alien seeking the additional waiver. INA 203(b)(2)(A) tells us that the alien seeking the waiver must show that (s)he "will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States."

Ultimately, the evidence must show that the granting of the waiver of a job offer and/or the usual labor certification process for this alien will serve the National Interest(s) in any of the following as they relate to a substantial prospective beneficial effect in the:

  • National Economy,
  • National Cultural Interests,
  • National Educational Interests, or
  • National Welfare of the United States.
    • It is always In The National Interest to Promote the "General Welfare" especially when we recall, and take into account these very well known words:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

In that clear contexts exist in the statute, a test or approach to the evaluation of the evidence presented could be formulated. The approach that AAO appears to have consistently taken would appear to be quite similar to the "final merits determination" (or as I call it the qualitative analysis and evaluation) alluded to in the Ninth Circuit case that USCIS has adopted. USCIS applies this two-step process to decisions for the EB-1 alien of extraordinary ability, the EB-2 alien of exceptional ability, and O-1 alien of extraordinary ability.

See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), which includes:

".... If a petitioner has submitted the requisite evidence [required by 8 C.F.R. 204.5(h)(3)], USCIS determines whether the evidence demonstrates both a "level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the[ir] field of endeavor," 8 C.F.R. 204.5(h)(2), and "that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 204.5(h)(3). Only aliens whose achievements have garnered "sustained national or international acclaim" are eligible for an "extraordinary ability" visa. 8 U.S.C. 1153(b)(1)(A)(i)." At p. 3437 (Bracketed changes are AAO's in their request for Amicus Briefing.)

".... While ... [certain specific evidence] ... (or a lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least ... [the required number of specific] ... types of evidence. ..." At 3441 (Bracketed changes are mine.)

The qualitative analysis and evaluation could be applied to the NIW evaluation as well. After one meets the initial requirements for EB-2 classification, the NIW determination might take the form of:

FIRST isolating the proper contexts as per statute,
  • The preliminary job-related context:
    • A specific profession or
    • An exceptional ability area within the:
      • Arts,
      • Sciences, or
      • Business, AND
  • The specific National Inertest context of:
    • National Economy,
    • National Cultural Interests,
    • National Educational Interests, or
    • National Welfare of the United States
NEXT establishing the existence of a prior record of accomplishment,

(which USCIS would then painstakingly dissect in order to either:

  • confirm and accept or
  • attack and deny) AND FINALLY
EVALUATING the prospect of a future benefit to the U.S. within the defined contexts.

If I were trying to build a case, that is the approach that I would take in presenting it to USCIS. It is neither simple nor easy but what else would you expect? After all, the qualitative analysis and evaluation required for a judgment on the merits is not a simple task.

This is because such a finding serves as the foundation to support an affirmative declaration that USCIS has found an alien to possess the requisite level of "ability" for this highly coveted visa classification. Additionally, USCIS must make a good faith finding that the alien will likely make future contributions (i.e., prospective benefits to the U.S.).

The Benefits Attached To Such "Findings Of Fact" Are That Such A Finding Allows An Alien To:

  • Obtain an employment-based visa without an actual job offer, and
  • Circumvent the labor certification process, which was created to protect the American workforce from unfair competition that could negatively impact working conditions and wages.

High benefits are not easy to come by so one must present a convincing case from the start. That's my two-cents on the subject, for now.

About The Author

Joseph P. Whalen Is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.