In 1990, Congress created a new route to permanent residency for certain foreign nationals performing work that is deemed to be in the “national interest.” To claim eligibility for a national interest waiver-based permanent residency visa in the EB-2 permanent residency category, applicants must possess advanced degrees or exceptional ability in the arts, sciences, or business. An advanced degree is normally considered to be a degree higher than a bachelor’s degree, though a bachelor’s degree is acceptable if the applicant possesses at least five years experience in a specialty. Exceptional ability covers aliens who have a degree of expertise significantly above that ordinarily encountered. Exceptional ability applicants must provide documentation in any three of the following seven areas:

  • degree relating to the area of exceptional ability
  • letter from past and present employers documenting ten years experience in specialty
  • license to practice in occupation
  • salary or compensation demonstrating exceptional ability * membership in professional association
  • recognition for accomplishments in field
  • other comparable evidence

 

A national interest waiver is actually a waiver of the normal EB-2 category requirement to obtain a labor certification from the US Department of Labor documenting that there are no US workers qualified and available for a permanent position offered by an employer. To obtain a labor certification, an alien’s employer must undertake a tightly regulated recruitment campaign for a position that includes a requirement to advertise the position and pay at least the prevailing wage to the employee. A national interest waiver waives both the labor certification requirement and the job offer requirement. This means that national interest applicants can avoid the advertising and prevailing wage requirements and can sponsor themselves rather than relying on an employer to sponsor them. A key advantage to a national interest waiver is the fact that labor certifications can take considerable time – as long as two years in some parts of the US – whereas a national interest case can be completed in just a few months.

The key INS requirement for a national interest waiver is that an applicant “must make a showing significantly above that necessary to prove “prospective national benefit.” Beyond this, there is little definitive guidance for determining whether one meets the test for a national interest waiver. Several febisions in early administrative appeals provide guidance. The first and most influential case febided by the Administrative Appeals Unit, _Mississippi Phosphate_, a case involving a business professional, listed defining factors for determining national interest. They are the following:

  • improving the US economy
  • improving wages and working conditions of US workers
  • improving education and training programs for US children and under-qualified workers
  • improving health care
  • providing more affordable housing for young and/or older, poorer US residents
  • improving the environment of the US and making more productive use of natural resources
  • involving a request from an interested US government agency

 

Later AAU febisions have generally approved cases in four areas – the sciences, social sciences, arts and business. Many approved applications have been for individuals claiming to benefit areas other than those mentioned above. Examples include benefiting the national defense, improving the nation’s infrastructure and improving the nation’s culture.

The INS typically looks at a number of types of evidence in febiding national interest cases:

  • proof that the applicant has a track record of benefiting the national interest.
  • documentation that the applicant will have a significant impact on his or her area of expertise.
  • proof that the applicant is conducting research that will “set her apart from other scientific researchers” to such an extent that she would substantially benefit prospectively the US to a significantly greater degree than other qualified scientists engaged in research.”
  • documentation that work benefiting the national interest will be substantially impaired if the applicant would have to leave the US.
  • support letters from a cross section of individuals – independent experts, past and present supervisors, colleagues and advisors, government agency officials.
  • media articles about the applicant’s work specifically and general articles relating to the alien’s field of research as it relates to the national interest.
  • awards and patents.
  • for physicians, proof that the applicant is providing services to under-served populations or in an under-served location.
  • proof that a J-1 visa’s home residency requirement has been waived on public interest grounds (the INS states that this is persuasive, but not determinative, in a national interest case).
  • evidence that the applicant receives a high salary demonstrating exceptional ability.
  • evidence of funding from government sources.
  • documentation that the applicant’s colleagues have received national interest waivers.

 

One issue that arises not infrequently in national interest cases is what to do when an employee changes employers after initial approval of a national interest waiver, but before the applicant receives permanent residency. In labor certification cases, changing employers almost always means the foreign national must abandon the application. Fortunately, in national interest cases, merely changing jobs does not kill an application, even if the applicant’s petition is filed by the first employer. The key factor will instead be whether the applicant will continue to benefit the interest in the same way as previously approved by INS.

Another issue that arises in national interest cases is how much evidence is really needed. There is no bright line test here, though immigration lawyers often jokingly refer to a “two inch test” in national interest cases – basically, the need to have at least two inches worth of documentation to support an application. Whether this much evidence is in fact necessary (and I believe there is some truth to this), the point is that a national interest application will succeed or fail based on the quantity and quality of the evidence presented.

The rules governing national interest cases may change dramatically if and when the INS publishes regulations governing the national interest waiver application process. Proposed rules were published in June 1995, though the INS was flooded with comments and it is not clear when final rules will be released. In June 1996, an INS official told the American Immigration Lawyers Association at the association’s annual meeting that final regulations were expected by the end of 1996. The proposed regulations would establish four basic requirements for national interest applications:

  • the applicant has two years of full-time experience in the activity in which he or she will benefit the US.
  • the request for a waiver is not based solely on a local labor shortage.
  • the applicant will engage in an undertaking that will benefit the US substantially and prospectively.
  • the applicant will play a significant role in benefiting the national interest.

 

The proposed rules would dramatically affect the number of potential applicants for national interest cases. Recent graduates of professional schools would be ineligible including those recently receiving Ph.D.s and MDs. The requirement that the application not be based on a labor shortage reflects the INS’ opinion that national interest cases are often being inappropriately used when a labor certification would be best. The third test closely follows the statutory language describing national interest cases. And the fourth category seems to address the INS’ concern that a large number of applications, particularly in the sciences, come from individuals who play a relatively minor role in an important project.

The national interest waiver has been a popular path to lawful permanent residency over the last few years because of a very high approval rate and because of the attractiveness of avoiding the labor certification. Nevertheless, the number of applications submitted may drop significantly in response to what appears to be a more hard line approach being taken by INS examiners in these cases. The importance of carefully choosing the national interest category and in spending the time to gather quality evidence cannot be understated.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk. The information provided in this article has not been updated since its original posting and you should not rely on it until you consult counsel to determine if the content is still valid. We keep older articles online because it helps in the understanding of the development of immigration law.

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