| |||||||||||||||||||||||||||||
 | |  | |  | |  | |  | |  | |  | |  | |  |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| National Interest Waiver (NIW) What Does the Law Say? INA §203(b)(2) provides that in order to be eligible for immigrant visas in Employment Based Second Preference (Eb-2), beneficiaries must be members of the professions holding advanced degrees or aliens of exceptional ability. Normally, the granting of a visa under §203(b)(2) requires that the alien beneficiary have a permanent job offer from a U.S. employer and the petitioning U.S. employer undergo a Labor Certification process. Labor Certification is the process whereby a petitioning U.S. employer demonstrates that there is a shortage of qualified U.S. workers in a particular field. The purpose of Labor Certification is to protect the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment in the U.S. However, INA §203(b)(2)(B) creates an exception to this general requirement of Labor Certification by providing that the “Attorney General [now the Secretary of Homeland Security] may, when he deems it to be in the national interest, waive” the Labor Certification requirement. But neither the statute nor the USCIS regulations define the term “national interest”. The Three-Prong Test for National Interest Waiver The Administrative Appeal Unit (AAU) in In Re New York State Department of Transportation (NYSDOT) lays out the criteria for deciding whether a national interest waiver (NIW) should be granted. USCIS (formerly INS) adopted this decision as precedent that has binding authority over national interest waiver adjudications. So far this is the only AAU decision on NIW that has been adopted by the USCIS. In NYSDOT, AAU set forth a Three-Prong test for granting national interest waiver. First prong: the alien must seek employment in an area of substantial intrinsic merit; second prong: the proposed benefit must be national in scope; and third prong: the national interest would be adversely affected if a labor certification were required for the alien. Usually it is not difficult to pass the tests set in the first and second prong. Crucial to the third prong is proving that the national interest would not be as well served by giving the job to a U.S. worker with the same minimum qualifications. To prove that the alien would benefit the national interest in ways that could not be matched by U.S. workers with the same minimum qualifications, the alien beneficiary must possess a demonstrated record of specific prior achievements. Proof of Specific Prior Achievements In NYSDOT, AAU has articulated a laundry list of things that will not suffice, by themselves, for a national interest waiver. These factors include: assertion of a labor shortage; the mere possession of useful skills or a unique background or experience; simple exposure to advanced technology; and special or unusual knowledge or training. Under NYSDOT, to prove that the U.S. national interest would be adversely affected if a labor certification were required, the petitioner must establish that the alien beneficiary would serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Furthermore, since “exceptional ability” is not per se sufficient to waive labor certification, the alien must present benefits to his or her field that greatly exceed the achievements and significant contributions required of aliens of exceptional ability. To that end, it is necessary to provide evidence of past achievements that justify projections of the proposed future benefit. In other words, the alien beneficiary must have an established ability to serve the national interest to a greater extent than the majority of his or her colleagues, and possess a past history of demonstrable achievement with some degree of influence on the field as a whole. The emphasis, then, is on “specific prior achievements.” Therefore, in national interest waiver, although USCIS looks into the future benefits to the U.S. national interest, the alien beneficiary must establish future benefits by providing an outstanding record of specific prior achievements. This is the key to a successful national interest waiver petition. |
| Copyright © Liu&Associates,PLLC. All rights reserved. |