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National Interest Waiver
Since the introduction
of the "national interest" waiver through the Immigration Act of 1990,
the INS' Administrative Appeals Unit (AAU) has decided a number of national
interest waiver cases, beginning with the Mississippi Phosphate
case. In that decision the AAU enumerated several activities, any one
of which it felt had a sufficient impact on the "national interest" of
the United States to warrant granting a waiver of the labor certification
requirement. The seven criteria are:
| 1) |
Improving the
U.S. economy |
| 2) |
Improving wages
and working conditions of U.S. workers |
| 3) |
Improving education
and training programs for U.S. children and under-qualified workers |
| 4) |
Improving health
care |
| 5) |
Providing more
affordable housing for young and/older, poorer U.S. residents |
| 6) |
Improving the
environment of the United States and making productive use of natural
resources |
| 7) |
A request from
an interested U.S. Government agency. |
Following the AAU's
decision in New York State Department of Transportation ("NYSDOT"),
the beneficiary of a petition requesting a waiver of the labor certification
in the national interest must also establish that:
| 1) |
The alien's proposed
benefit must be national in scope; |
| 2) |
The alien will
serve the national interest to a substantially greater degree than
would an available U.S. worker having the same minimum qualifications; |
| 3) |
The alien's work
is in an area of substantial intrinsic merit. |
INS Headquarters subsequently
issued a directive that National Interest Waivers approved prior to the
AAU's decision in Matter of New
York State Department of Transportation (Int. Dec. 3363) (August
20, 1998) "should be honored" and should not be reopened for
rescinding approval of the national interest waiver or for requiring the
petitioner to now prove entitlement under the more stringent NYSDOT standard.
INS Service Centers
have indicated that the following factors are also used in evaluating
an applicant's eligibility for a National Interest Waiver:
| 1) |
Those seeking
qualification for a waiver of labor certification based on services
considered in the national interest must make a showing significantly
above that to prove "prospective national benefit" required
of all aliens seeking qualification as exceptional. It applies only
to aliens who will substantially benefit prospectively the national
economy, cultural or educational interests or welfare of the United
States. |
| 2) |
National interest
cases require that the emphasis rest with the overall value and potential
of the beneficiary's individual contribution to the U.S. -- not the
fact that they are working in a field of "high national interest."
The alien may qualify by being found to be a "key" or "critical"
member of a team if it can be shown that the team function would be
severely impaired without this member. Merely working in an area of
national interest does not necessitate a finding of national interest
qualification. |
| 3) |
[INS] highly
recommends the submission of better testimonial letters from substantial,
recognized national or international organizations/institutes/ government
agencies with the expertise to definitely say that the work or contribution
of the individual truly is in the national interest. The authors of
these third-party testimonial letters should clearly state how they
came to be familiar with the alien's work. |
| 4) |
When accompanied
by these improved "advisory opinions" and when focused on
the individual, time will be saved and returns for evidence will be
reduced. Also, placing the testimonial evidence with the attorney/petitioner
summary letters at the front directly beneath the Form I-140 will
eliminate examiner time spent wading through academics articles, field
surveys, general reports, etc., which often add minimal weight to
bolster the claim for his/her specific achievements or individual
national interest potential. |
| 5) |
INS sees many
claims for graduate students who have not had enough time or experience
as a researcher or engineer in order to qualify for E21 category and
have done little, outside the work required to complete their degree.
Often the claim is made that their area of research is so potentially
"cutting edge" or so significant that it must be in the
national interest. In accordance with established criteria, it should
be very difficult for the above-described person to qualify. The National
Interest Waiver category is not designed for all graduate researchers
to qualify. |
| 6) |
Our officers
look for realistic evidence of "substantial prospective benefit"
to a national interest item or agenda which specifically sets the
alien apart from others in the field. |
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