LEGAL LANGUAGE SERVICES

National Interest Waiver Cases

Alan M. Lubiner, April 2000

Last year the Board of Immigration Appeals  issued an opinion that has made National Interest Waiver cases considerably more difficult. The case, IN RE NEW YORK STATE DEPT OF TRANSPORTATION (Interim Decision #3363) involved a petition filed by the State of New York on behalf of one of its civil engineers. The BIA made the following three findings:

1. An alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education which could be articulated on an application for a labor certification.

2. General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic issue.

3. A shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver. Given that the labor certification process was designed to address the issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than waiving a labor certification.

The difficulty with the case is that the decision is so broad it gives the INS latitude to deny almost any case. The second point, that it is not enough to show that the area where an alien is going to be working is in the national interest and that the applicant is working in that field, is also troubling. That would seem to be a completely appropriate type of case for an NIW. Plus, the door seems to be open to an entirely new, non-statutory requirement that an applicant explain why a labor certification is not an appropriate case strategy.

The BIA noted that that several factors must be considered when evaluating a request for a national interest waiver.

First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. The BIA found that requirement met in this case. The beneficiary's field of endeavor, engineering of bridges, clearly satisfies this requirement. But a petitioner cannot establish qualification for a national interest waiver based solely on the importance of the alien's occupation.

Next, it must be shown that the proposed benefit will be national in scope. In this case, the alien's work, while limited to just the State of NewYork, involved interstate transportation since New York's bridges and roads connect the state to the national transportation system. So the BIA concluded that this requirement was met.

Third, 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. An alien seeking an exemption from this process must therefore present a national benefit so great as to outweigh the national interest inherent in the labor certification process.

Unfortunately the decision was not appealed because the employee already had a labor certification and didn't need the NIW.  While the NIW category is not dead, it certainly is less attractive than before this decision by the BIA.

Disclaimer:
This the information provided in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult with a lawyer concerning your own situation and any specific legal questions you may have.