For the vast majority of employment-based permanent residency applicants, the only option ever considered is the labor certification process. The labor certification application process requires an employer to conduct a labor market test in order to demonstrate that no US workers with minimum qualifications are immediately available to fill the position for which the visa applicant is being considered. The program has extensive regulatory requirements including many governing how the job is to be advertised, how applicants are to be interviewed and how much workers are to be paid.

For applicants qualifying for the EB-2 employment category, the labor certification may be waived if the applicant can demonstrate that the applicant's admission is in the national interest. The EB-2 category is open to individuals who are professionals holding advanced degrees and for workers with exceptional ability.

INS regulations define an "advanced degree" as any degree beyond the bachelor's degree. A profession is defined to include occupations that normally require a bachelor's degree or higher for admission. For purposes of the EB-2 category, an applicant will be considered to have the equivalent of a master's degree if he or she has a bachelor's degree and five years of progressive experience. However, experience may not substitute for a bachelor's degree.

Exceptional ability can be demonstrated if the applicant can show at least three of the following:

(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

(C) A license to practice the profession or certification for a particular profession or occupation;

(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;

(E) Evidence of membership in professional associations (though there is no requirement that the professional associations must require outstanding achievements of members);

(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations; or

(G)Other comparable evidence.

Assuming that the applicant falls into one of these categories, the analysis of the national interest claim must be made. INS regulations do not specifically define "national interest" and immigration lawyers are left to rely on court cases and publicized INS decisions to determine whether a case is appropriate for the category. NIW cases have been approved in the following areas:

* improving the national economy

* improving wages and working conditions of US workers

* improving the nation's military readiness

* improving the education and training of US children and US workers

* improving health care

* providing affordable housing for younger and older, poorer US citizens

* improving the US environment

* helping the US make more productive use of natural resources

* a request has been made by a US government agency

* contributing to the nation's arts and athletics

* helping to resolve the Year 2000 computer bug (see story later in this issue)

There are a number of significant advantages to the NIW category.

First, the process is quite fast in comparison to the labor certification. The labor certification process can take more than three years in some parts of the US. The NIW petition can be approved in a matter of weeks or a few months.

Second, there is no requirement to have an employer petitioner. This can be helpful in several situations. For example, some doctors work in states that do not permit hospitals to employ physicians directly. As self-employed professionals, labor certifications are not possible. For research scholars moving from one institution to another but conducting essentially the same research, a national interest case can remain intact. If a labor certification applicant changes employers, the general rule is that the application lapses. Of course, one who is unemployed or only working part time in his or her field will have a tough time proving national interest.

Third, there is no prevailing wage requirement. Labor certification cases require employers pay employees at least as much as the average worker at that level would be paid in the particular geographic area. This requirement does not apply to NIW cases. This can be a significant if one is working for a non-profit organization that cannot afford to pay top salaries or if one is working in a research position where funding limits the amount that the researcher can be paid.

While the lack of regulations may intimidate many from applying in the category, a creative attorney can often fashion a winning NIW case with a compilation of quality evidence and a well-drafted petition brief. Successful cases will normally contain a number of support letters from past and current employers, past academic advisors, independent experts in the applicant's field or profession, government agency officials and clients of the employer.  Articles and documents providing background on the applicant's field of national interest are useful as are documents proving the alien's credentials - diplomas, rewards, patents, etc. But the most important document will be the attorney's brief outlining the case.

The INS does not claim to follow any unpublished set of rules on these cases, but certain patterns are apparent. First, students, by and large, are denied NIW petitions and recent graduates are also being frequently denied. Second, the INS seems to be applying an extraordinary ability standard like the EB-1 category even though the statute does not require this. The INS will be suspicious of cases that do not have independent expert support letters. It will also expect the alien to demonstrate past contributions to the national interest in order to demonstrate the likelihood of future contributions.