Silver Lining on the Black NIW Cloud : INS Stance re NIWs Approved Prior to NYSDOT
Posted May 29, 1999

In the April 1999 edition of the Immigration Bulletin of the Law Office of Sheela Murthy, we have discussed the stricter standards for National Interest Waiver (NIW) approvals under the New York State Department of Transportation ("NYSDOT") case. The question that had been posed from time to time was whether in those cases where there have been an NIW approvals prior to the stricter NYSDOT standard, if the INS would reopen those cases and re-evaluate them under the new, stricter standard. Several candidates have been concerned about filing for the adjustment of status based upon their pre-NYSDOT approvals, for fear that INS would request detailed additional documentation at the permanent residence interview.

INS, in a Field Memorandum published in April 1999, has confirmed that all such pre NYSDOT NIW approvals will be honored, and all such NIW approved beneficiaries can apply for the adjustment of status. To quote the INS Memorandum: "Petitions should not be reopened for rescinding approval of the national interest waiver or for requiring the petitioner to now prove entitlement under NYSDOT."

The Law Office of Sheela Murthy is relieved that we now have a clear and sensible decision on this point in accordance with law since there are serious legal and constitutional concerns that the INS position in applying the NYSDOT standards to cases which were filed prior to the NYSDOT decision, violates established doctrines of retroactivity and is in violation of Congressional intent with respect to the purpose and scope of the national interest waiver provisions.