National Interest Waivers : Nightmare or Reality?
Posted Apr 20, 1999

Readers of the Law Office of Sheela Murthy's Immigration Law Bulletin may be aware of the NYSDOT case which has resulted in the INS reviewing National Interest Waiver (NIW) cases more stringently. We have also discussed the effects of this case briefly a few months ago in an article pertaining to NIWs. For those of you considering an NIW application, an understanding of this case would be helpful. This article discusses the case in more detail, specifically outlining the factors the INS needs answered before approving a NIW case.

In late 1998, the Administrative Appeals Office (AAO) decided the New York State Department Of Transportation (NYSDOT) case, Interim Decision 3363, (Acting Assoc. Comm'r, Programs, August 7, 1998) . Considered by many as a nightmare, the reality of an NIW case now appears elusive. The INS often sends out a Request for Evidence or RFE in many cases which were filed prior to the NYSDOT decision, requiring the applicant to meet the newer and stricter standards to qualify for a NIW approval. The seven factors that the INS would like addressed are as follows:

In order to establish eligibility for a National Interest Waiver, pursuant to the matter of NYSDOT, the applicant must provide evidence which addresses eligibility for a National Interest Waiver under each of the following categories:

1) Evidence that the benefits of the applicant's proposed employment will be national in scope and benefit more than a particular region of the country. Moreover, there is little or no adverse impact on the interests of other regions of the country.

2) Evidence of employment in an area of substantial intrinsic merit and important to the national interests of the United States. Additionally, the benefits of the employment should be immediately apparent to the national interests of the United States.

3) Evidence related to the applicant's ability to perform the duties of the proposed employment position and a showing significantly above that necessary to prove the "prospective national benefit" required of all applicants seeking to qualify as "exceptional" meaning "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business."

4) Establish that the applicant is not seeking a national interest waiver based on a shortage of qualified workers in a given field, regardless of the nature of the occupation. The National Interest Waiver is not warranted solely for the purpose of ameliorating a local labor shortage.

5) Evidence that the applicant holds a patent/innovation and that the specific innovation serves the national interest.

6) Evidence demonstrating that the national interest would be adversely affected if a labor certification were required. It would be contrary to the national interest to potentially deprive the prospective employer of the applicant's services by making available to U.S. workers the position sought. If self-employed, the applicant must also establish the national interest would be adversely affected if a labor certification were required.

7) Evidence of the past record of specific prior achievement which justifies projections of future benefit to the national interest.

These standards, while superficially high, are not as difficult as may appear at first blush. In fact, many candidates who qualified before would still in all likelihood qualify for an NIW. It is those who had borderline or weak cases before who will probably not be able to surmount the NIW road block. Even those who qualified before will now need to address all of the issues raised by this case. The Law Office of Sheela Murthy continues to receive approvals subsequent to the NYSDOT case.

In summary, in order to present a successful NIW case, the applicant must address the above issues. If you are the applicant, then you must establish that your contributions to your vital field are superior to the contributions of your peers and surpass the general duties or projects associated with your work. You must demonstrate your significant influence on the field in order to show that you have an established track record of prior outstanding achievements which is an indication of your prospective national benefit to the U.S. The new standards mandate that you demonstrate tangible evidence of past successes to show enough of a pattern to indicate future successes that will be in our national benefit. Unbiased letters by experts in the applicant's field stating that the original or ground breaking work places the applicant at the top of her or his field of endeavor, i.e., above her/his peers, are a tangible way to demonstrate past successes and an indication of the future benefit to the U.S.

The Law Office of Sheela Murthy has recently (in early April 1999) been advised that the Nebraska Service Center has separated National Interest Waiver cases from other I-140 Petitions and will adjudicate them later on in order to address the NYSDOT question, without any idea of a concrete timetable of when they intend to tackle these cases!

Many applicants who filed an NIW case over a year ago before the NYSDOT decision are now being held to the standards in this case. Some of them are being afforded the opportunity to address the factors above, while apparently others have been issued denials without the opportunity to surmount this barrier. Although an understanding of this case may result in many potential NIW applicants eliminating themselves from submitting an NIW case, it is advisable to consult with a knowledgeable attorney who can provide professional guidance in this vitally important decision. There is no need to despair, though there is reason to be cautious. If you do not have an attorney and wish to consult with the Law Office of Sheela Murthy, please send us an email so that we may determine the likelihood of submitting an NIW case.