National Interest Waivers

At 8 U.S.C. §1153 (b)(1)(B) it states:

Subject to clause (ii), the Attorney General may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an aliens’s services in the sciences, arts, professions, or business be sought by an employer in the United States.

This is commonly termed the National Interest Waiver.

The National Interest Waiver first appeared in the Immigration and Nationality Act in 1990. Between 1990 and 1998, the Executive Branch had not effectively defined what warranted a waiver of the labor certification requirement in the national interest.

In 1998, the Board of Immigration Appeals decided the case of In re New York State Department of Transportation, 1998 BIA LEXIS 26, 22 I. & N. Dec. 215 (BIA, 1998) [hereafter NYSDOT]. In the NYSDOT case the Board of Immigration Appeals delineated a test by which all future cases involving national interest waivers would be judged.

As the BIA stated in the NYSDOT case, neither Congress nor the Code of Federal Regulations define the term national interest. The only hint of the meaning came from the Senate Report, which stated that the Congress was attempting to increase the … number and proportion of visas for immigrants who would benefit the United States economically and otherwise.

As a result of the open ended meaning of national interest the BIA set down its own test. That test requires several things:

1. We must first establish that you seek employment in an area of substantial intrinsic merit. In the NYSDOT case the BIA concluded that the immigrant’s field of work, namely the building of bridges, was an area of substantial intrinsic merit. The BIA stated that the “. . .importance of bridges, and their proper maintenance, is readily apparent.” The BIA was very careful to state that it was not creating a blanket waiver for people just because they work with bridges—they stated that each case was to be taken on a case by case basis according to importance.
2. Second, we need to show that the benefit of your employment must be national in scope. You do not need to work nationally simply to have a national impact. In the NYSDOT case the BIA concluded that the bridges of New York connect with our system of national roads, which in turn means that the benefit of their safe maintenance and repair accrues to more than simply New York. On the flip side it is also important that your employment will not hurt other regions of the country. The BIA also thought this was significant in NYSDOT and found that maintaining bridges in New York (unlike say the building of a dam) did not hurt other regions. This is a problematic prong for some people to get by. Take a professor who teaches at a local college and focuses on local issues. As the national impact narrows it is harder and harder to succeed with a national interest waiver filing.
3. We must show that the national interest would be adversely affected if a waiver was not given and you were forced to pursue a labor certification. A scientist working on an alternative fuel breakthrough could easily argue that environmental protection efforts would be seriously undermined and pollution would increase if he or she were not granted a national interest waiver.

Additionally, a candidate for a national interest waiver should be prepared to show that they have exceptional ability. the Board of Immigration Appeals made clear in the NYSDOT case that it was not only those in second preference seeking classification as a member of the arts, sciences or business, who needed to possess “exceptional ability” to gain a national interest waiver. The BIA indicated that although members of the professions did not need to display exceptional ability when they were going through the regular labor certification process it was assumed that both those in the professions holding advanced degrees and those in the arts, sciences, and business would have exceptional ability in order to qualify for a national interest waiver.

The BIA referred to the Code of Federal Regulations definition of “exceptional ability”. At 8 C.F.R. §204.5 (k)(3)(ii) it states that to show exceptional ability an individual must produce evidence of three of the following:

“(A) 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;
“(B) 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;
“(C) A license to practice the profession or certification for a particular profession or occupation;
“(D) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrate exceptional ability;
“(E) Evidence of membership in professional associations; or
“(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations;
“(iii) 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.”