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National Interest Waiver
The statute requires that the services of the second preference
beneficiary ''be sought by an employer in the United States.''
But it also allows the job offer to be waived not only in the
case of persons of exceptional ability but to professionals
with an advanced degree as well.
The INS developed a non-exclusive test of national interest
for aliens of exceptional ability in business, which lists seven
factors. If any one of these or other relevant factors are satisfied,
a requested waiver is arguably in the national interest:
- improving the U.S. economy;
- improving wages and working conditions of U.S. workers;
- improving education and training programs for U.S. children
and under-qualified workers;
- improving health care;
- providing more affordable housing for young and/or older,
poorer U.S. residents;
- improving the environment of the United States and making
more productive use of natural resources; or
- a request from an interested U.S. government agency.
Not only business expertise that helps the national economy,
directly or indirectly, but medical, legal, or educational skills
badly needed in a region or state qualify under the national-interest
rubric. Aliens in the arts were able to make the cut; leaders
in medical and other scientific research have had easy going.
That the alien would be engaged in such matters of national
interest as industrial development in fields where the United
States is in keen international competition, or business development
favorably affecting our balance of trade, also weigh heavily
on the side of the waiver.
Waivers of the job-offer requirement have been denied to aliens
who were unable to show that they as individuals would significantly
benefit the United States through their employment to a greater
degree than other qualified individuals. Where the alien's talent
and training were deemed to potentially benefit the alien's
employer, rather than the United States, the exemption was denied.
Designated as a precedent decision on August 7, 1998, Matter
of New York State Dep't of Transportation (NYSDOT) sets
out binding criteria for waiver of the job offer, pointing in
the direction suggested by earlier INS statements and decisions,
but perhaps more exacting. In evaluating the request for a waiver,
these factors must be considered:
- The alien must be seeking employment in an area of substantial
intrinsic merit.
- The proposed benefit must be national in scope. The INS
suggested that the beneficiary's individual activity must
have a significant national impact. The issue is whether
local work has a national impact. Some local work, no matter
how important where it is done, may be too attenuated in
terms of national impact to warrant a waiver. On the other
hand, the INS has issued a waiver to an artisan bread baker
and baking instructor whose system of training filled a
void in our educational system and who played a critical
role in the cultural renaissance of artisan baking, a culinary
art rich in European tradition.
- The final test is specific to the alien. The labor certification
process exists because protecting the jobs and job opportunities
of U.S. 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.
To prevail in obtaining the waiver, the petitioner must establish
that the alien will serve the national interest to a substantially
higher degree than would an available U.S. worker having the
same minimum qualifications.
The newer decisions suggest that a national interest waiver
is still possible, even for employment with a private company,
but it has become even more important to obtain testimonials
from independent experts at the highest level, ideally from
government sources. The evidence should show that the applicant's
activities will have a strong, positive impact on a significant
interest of the United States at a national level. The likelihood
of that impact should be demonstrated by what the applicant
has already achieved, ideally along lines that show a talent
for innovation. The standard that the Service exacts for the
waiver is a showing significantly above that necessary to prove
the substantial ''prospective national benefit'' normally required
of all aliens seeking to qualify as ''exceptional,'' even for
those who petition for second preference on the basis of an
advanced degree.
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