The Board of Immigration Appeals has issued an opinion that could make 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 New York, 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. The BIA does state in a footnote, however, that it is using a tougher standard here than in the old "exceptional ability" cases under Section 203(b)(2)(A) of the Immigration and Nationality Act. In that type of case, the local labor market is considered through the labor certification process and the activity performed need not have a national effect. For example, pro bono legal services as a whole serve the national interest, but the impact of an individual attorney working pro bono would be so attenuated at the national level as to be negligible. This seems to be a significant departure from a number of cases previously approved by INS that seemed to indicate the opposite - that is, that it was not necessary to show that an individual's work would have a nationwide impact as long as it overall contributes to the nation's interest.

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. This finding is perplexing as it appears to be a completely new requirement that has no foundation in the legislative history or the plain meaning of the statute. The National Interest Waiver category is designed to make immigrating faster and easier for a select number of people providing important services to the country. The program was not designed to be used as a category for people who could not otherwise pursue a labor certification.

The BIA goes on to state "that the petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to US workers the position sought by the alien. The labor certification process exists because protecting the jobs and job opportunities of US workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process."

The BIA states in the case, that the third requirement can be restated as requiring that a US employer or the alien establish that the alien will serve the national interest to a substantially greater degree than would an available US worker having the same minimum qualifications. It is not enough to list an alien's qualifications since a labor certification could reveal an available US worker with the same qualifications. And it cannot be argued that an alien plays a critical role in a project if an available US worker could fill such a role. This is also contrary to the reasoning enunciated by the INS over and over again in national interest cases - that is, that the alien should play a significant role in a project and cannot be easily replaced if forced to leave the country. The BIA fails to provide any guidance or examples of how one could actually prove that a labor certification would be inappropriate. It only states one example of what would not work - an argument that an applicant is in an occupation where the individual is self-employed and would have no US employer to apply for a labor certification. Of course the BIA fails to address why more and more people are turning to NIWs - the utter collapse of the labor certification system. In some parts of the country, labor certifications can take more than three years and then INS processing can add another one to two years. For people with a limited amount of time remaining on a non-immigrant visa, this wait can mean that they have to leave the country and, consequently, no longer perform the work that is in the nation's interest.

The BIA goes on to say that the alien here must still show that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field. The BIA here seems to now be requiring that an alien meet the requirements of the EB-1 category for aliens with extraordinary ability. The focus now in an NIW case is on showing the alien is significantly better qualified than others in the field. The traditional understanding of immigration lawyers is that the EB-1 category focused on the alien's qualifications and the EB-2 NIW category focused on the importance of the alien's work. Now the EB-2 NIW requirement has two broad requirements - prove the work is in the national interest AND prove the worker is of extraordinary ability. Why anyone would choose the EB-2 NIW category anymore is hard to fathom.

The BIA does make other pronouncements of significance. According to the BIA, a petitioner's subjective assurance that he or she will, in the future, serve the national interest cannot suffice to establish a prospective national benefit. While the national interest waiver hinges on PROSPECTIVE national benefit, it clearly must be shown that the alien's past record justifies projections of future benefit to the national interest.

Many NIW lawyers are in agreement that the INS has deliberately chosen this case to avoid having to go through the regulatory process. In 1995, the INS issued proposed NIW regulations to define "national interest" that were soundly criticized by the immigration bar. The regulations were criticized so much that the agency never issued final rules. Instead, in its own admission, the agency chose one case to pursue in order to get a definition of "national interest" on the books. The NY Dept of Transportation case is that case.

According to Jill Nagy, the attorney who argued the case, the decision will not be appealed by the New York State Department of Transportation because the employee has, in fact, already secured a labor certification and no longer needs a National Interest Waiver. That means that another would be National Interest Waiver applicant must challenge the BIA's decision and get it off the books. Otherwise, the INS will have succeeded in thwarting the will of Congress by killing the National Interest Waiver program.