Since the passage of the Immigration Act of 1990, INS refrained from publishing any precedent decisions regarding how to qualify for a National Interest Waiver (NIW)...until now. On August 7, 1998, the INS finally decided to provide some guidance on NIWs, and the new decision, Matter of New York State Dept. Of Transportation, is depressingly restrictive.

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National Interest Waivers

The 1990 law provides that persons in the professions holding advanced degrees, or persons of exceptional ability in the arts, sciences or business, whose work would benefit the national economy, cultural or educational interests of the U.S. would be exempted from the requirement that they obtain a job offer from a U.S. employer, and hence avoid the long and tedious labor certification process, if this would be in the "national interest" of the U.S.

Beyond this general statement, little guidance from the INS was provided. Our law firm applied for "NIWs" sparingly, about ten times per year. I can only remember receiving one denial, for a specialist in waste water management who insisted, against my advice, in applying for an NIW.

Apparently, according to a recent article in the Wall Street Journal, other applicants were more adventurous: Korean golf-course designers, Russian ballroom dancers, Ghanaian drum makers and Venezuelan child psychologists.

Perhaps because of the deluge of NIWs received by the INS, the agency has decided to tighten up the standards for qualifying for a National Interest Waiver.

The New Standards

The new case involves a civil engineer employed since 1993 by the New York State Department of Transportation. He holds an M.S. in Civil Engineering (Structures) from Iowa State University and his expertise is in the "prestressed concrete construction and design of post-tensioning and of curved bridges."

His application was initially denied by INS's Vermont Service Center and, more recently, by INS's Acting Associate Commissioner for Programs in Washington, D.C.

The decision is lengthy, but the new standards for approval of an NIW may be stated summarily:

1. It must be shown that the alien seeks employment in an "area of substantial intrinsic merit".

   The INS held that the engineering of bridges fulfills this criteria.

2. It must show that the proposed benefit is "national in scope".

   Here, the INS held that although the alien's employment was limited to a specific geographical area, New York's bridges and roads connect to the state and national transportation system. The INS went on to state that the proper maintenance and operation of these bridges and roads serve the interest of other regions of the U.S.

3. 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.

   The labor certification process exists to protect U.S. workers from foreign competition. If any U.S. worker meets the minimum qualifications for the job and is available to take the job, the employer will not be granted an alien labor certification. The INS opines in it's decision that "an alien seeking exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process". The INS goes on to state that "with regard to the unavailability of qualified workers, the job offer based on national interest is not warranted solely for the purpose of ameliorating a local labor shortage".

After reviewing the evidence presented in the instant case, the INS concluded that the petitioner had not meet this last requirement.

What Does This Mean to You?

Obviously, unless and until these new criteria are overturned by a Federal Court, it is going to be extremely difficult to qualify for a National Interest Waiver.

You should carefully examine whether you are qualified for any of the following categories for permanent residence through employment: Persons of Extraordinary Ability, Outstanding Professors and Researchers, Multinational Managers and Executives, Religious Workers, Blanket Labor Certifications or Reductions in Recruitment through the Labor Department.

You should also explore other immigrant options including petitions from close relatives who are U.S. citizens or permanent residents, green cards through investments, and the visa lottery program.

Above all, avoid the mistake made by the engineer in this case: Apply early! Assuming that he obtained H-1B status in 1993 or in 1994, why is he still trying to obtain an NIW in 1998? Make sure that you apply for an NIW and/or a labor certification within a few months of obtaining H-1B status. The Labor Department may take two to three years to process your application for labor certification. If your six years in H-1B status expires before you are able to apply for adjustment of status, you may be forced to leave the U.S. and wait for processing to be completed while you are abroad.