EB2 NATIONAL INTEREST WAIVER: A MORE RIGOROUS STANDARD

       I.            Introduction

This article discusses the various requirements of EB2 National Interest Waiver (NIW). An EB2 NIW allows foreign professionals with exceptional abilities holding an advanced degree, or its equivalent, along with other specifications, to work in the United States. Generally, a Labor Certification must be submitted and approved prior to filing for an EB2 visa. However, this requirement is waived by applying for an NIW.

Although challenging, applying for an NIW carries many benefits. First, the alien need not have a permanent job offer from a U.S. employer. In other words, the alien can self-petition for him or herself. Second, filing for an NIW waives the requirement of an approved Labor Certification. Finally, once granted, EB2 NIW green cards are not tied to one specific employer. However, if a NIW green card recipient elects to change employer, the new employment must fall within the “national interest.”

 

    II.            NIW Requirements

 

Although the Immigration and Nationality Act (“INA”) and the regulations of the Immigration and Naturalization Service (“INS”) fail to shed light on the definition of the term “national interest,” supplementary information to the INS regulations shows that this test should be applied as flexibly as possible. The adjudication of NIWs is done on a case-by-case basis.

 

In a case usually referred to as “Mississippi Phosphate,” EAC 92-091-50126 (AAU July 21, 1992), the Administrative Appeals Unit (AAU) provided some guidelines for adjudicating NIWs. In that case, the AAU provided that the following factors shall be considered in determining national interest:

 

  1. improving the United States economy;
  2. improving wages and working conditions of U.S. workers;
  3. improving education and training programs for U.S. children and other qualified workers;
  4. improving health care;
  5. providing more affordable housing for young and/or older poorer U.S. residents;
  6. improving the U.S. environment and making more productive use of natural resources; or
  7. Involving a request from an interested government agency.

 

  1. A.     The AAO Imposes a Higher Standard for NIW

 

Pursuant to Mississippi Phosphate, a national interest could be found upon satisfaction of one of the aforementioned factors. However, the abovementioned factors were met by more restrictive and rigorous standards set out by the Administrative Appeals Office (AAO) in Matter of New York Dept. of Transportation (NYDOT), Int. Dec. 3363 (Comm’r 1998). In this case, the beneficiary possessed a Master’s Degree in Civil Engineering. He was petitioned to provide professional engineering services for the rehabilitation, replacement, maintenance, and inspection bridges. In evaluating this beneficiary’s qualification, the AAO developed a three factors test that must be considered for purposes of a NIW.

 

First, the application must demonstrate that the alien seeks employment in an area of substantial intrinsic merit. Eligibility is not established merely by showing that the beneficiary’s field of work has intrinsic merit, but also whether the importance of the proposed work is readily apparent. In other words, the field of work must be related to an important national goal. Then, it must be shown that the proposed benefit will be national in scope. You must establish a benefit to more than a particular region of the country. The final threshold requires the petitioner to show that waiving the Labor Certification would benefit the national interests of the U.S. At least according to NYDOT, the protection of U.S. workers inherently benefits the national interest. In return, the national interest resulting from the alien worker’s contribution must exceed this inherent national interest. The AAO concluded that the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

 

In the NYDOT case, substantial intrinsic merit was found. The importance of proper maintenance of the state’s bridges was sufficient. The AAO found that, while the alien’s employment in NYDOT was limited to the local area, New York’s bridges and roads connected the state to the national transport system. Because the proper maintenance and operations of bridges and roads served the interests of other regions as well, the benefit was national in scope. However, the AAO found that, although the petitioner has shown that the beneficiary’s skills and abilities are of value to his current employer, the petitioner has failed to establish that a job offer waiver based on national interest is warranted. The AAO argued that Congress did not pass this statute with the intent that every person qualified to engage in a profession in the U.S. should be exempt from the requirement of a job offer based on national interest.

 

The AAO further explains that Congress’s intent did not encompass granting national interest waivers on the basis of the overall importance of a given profession, rather than on the merits of the individual alien as they relate to the job to be performed. The AAO concludes its decision by clarifying that nothing in the legislative history suggests that the national interest waiver was intended simply as a means for employer to avoid the inconvenience of the labor certification process. As such, the AAO denied this appeal since the petitioner failed to meet its burden.

 

  1. B.     Effect of NYDOT Decision

 

As discussed above, the NYSDOT case shows that bridge engineering was found as an area of substantial intrinsic merit. Areas of improving health, such as cancer research, are considered fields of substantial intrinsic merit. Other occupations which were considered, without a doubt, as having substantial intrinsic merit have been denied for not meeting the third NYSDOT prong. A list of these cases are listed below:

 

  • President of a new company, (AAO April 03, 2012)
  • Biomedical engineer, (AAO April 01, 2011)
  • Senior engineer, (SRC 08 013 50981, AAO April 13, 2010)
  • Postdoctoral research fellow in molecular biology, (SRC 07 800 15621, AAO March 05, 2010)
  • Entrepreneur, (LIN 08 084 51017, AAO January 7, 2010)
  • Postdoctoral fellow and research associate in hepatology research, (SRC 09 165 53 163, AAO January 7, 2010)
  • Advocate/lawyer exporting U.S. goods to Asia and Africa, (EAC 06 110 50107, AAO January 28, 2008)
  • Research associate in atmospheric chemistry, (LIN 06 119 51395, AAO October 25, 2007)