INS Restricts National Interest Waivers

The Immigration and Naturalization Service (INS) recently issued a precedent decision that restricts a once viable avenue for attaining immigrant visas for many aliens. Commonly known as the "national interest waiver" or "NIW," this method has helped expedite green cards for many aliens whose work is deemed to be in the "national interest." For example, we have successfully helped physicians working in medically underserved areas, medical researchers, and some types of engineers to receive immigrant visas this way. The national interest waiver method of obtaining a green card was preferable to other avenues in many cases because it allowed employers to bypass "labor certification," a long and cumbersome process by which employers must show that there are no U.S. qualified workers for the alien's position.

The INS's decision, called Matter of New York State Department of Transportation, held that an individual seeking a national interest waiver must satisfy three tests:

• The alien's work must be in an area of substantial intrinsic merit;
• The alien's proposed benefit must be national in scope; and
• The alien must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The alien must present a national benefit so great as to justify a waiver of the labor certification process.

The INS held that while the alien's work was in an area of substantial intrinsic merit and was national in scope, he did not establish that he would serve the national interest to a substantially greater degree than that of his colleagues. The INS's decision evidences an obvious preference for the labor certification process. Therefore, employers and self-petitioners can no longer tout the uniqueness of the alien's skills or the difficulty in finding workers with such skills as evidence for justifying a national interest waiver. According to the INS, that is exactly what the labor certification process was created for.

For further information on these or any other immigration issues, please contact Miller Mayer.