The 'National Interest' Waiver
By Stanley Mailman and Stephen Yale-Loehr*

"The 'national interest' causes INS to wander down peculiar paths," according to the title of a front page article last year in the Wall Street Journal. (WSJ, Aug. 20, 1998, at 1.) Leading with "an acrobat from Russia who plays a horn while flying through the air," Barry Newman, the WSJ reporter, panned the U.S. Immigration and Naturalization Service (INS or Service) for letting too many immigrants dodge the labor certification requirement under the cloak of our national interest. If Newman was right, the INS is now showing a lot more muscle, as we see in the decisions reviewed below.

The provision in question, 8 U.S.C. § 1153(b)(2), makes visa numbers available to persons of exceptional ability and to members of the professions with advanced university degrees. To qualify in this category, called the employment-based second preference, applicants normally must have a job offer from a U.S. employer who needs their exceptional ability or professional skills. In turn, the employer then has to get a certification from the Department of Labor (DOL) that qualified U.S. workers are unavailable for the job. But the INS can waive the job offer, and therefore the labor certification, on grounds of national interest.

When Congress enacted the waiver provision in 1990, it didn't specify what it meant by "national interest." Nor did the INS define that term by regulation; but it has granted permanent residence to thousands of immigrants under the national interest rubric. As the WSJ reporter would have it, the INS has chosen these foreigners "as if they were filling a curio cabinet with collectible personalities." In fact, the successful applicants included a host of highly skilled engineers, mathematicians, artists, and musicians. Cancer-research projects were able to secure the waiver for many talented young scientists, although some sported only newly minted master's degrees. A good many doctors and lawyers qualified by showing their willingness to serve remote rural areas desperately in need of professional help. Most of these immigrants were very desirable, but what characteristics had they in common, and did their immigration serve the national interest?

With a growing sense that the national interest waiver had become too big an umbrella for a limited exception, the INS last summer published a precedent decision, Matter of N.Y. State Department of Transportation (NYSDOT), Interim Decision No. 3363 (Acting Assoc. Comm'r Aug. 7, 1998), which, for the first time, translated "national interest" into a set of conceptual guidelines:

1. The applicant must be seeking employment in an area of "substantial intrinsic merit." (So much for hornplaying acrobats.) The engineering of bridges, the specialty in NYSDOT, met this test.

2. The proposed benefit has to be national in scope. The applicant in NYSDOT met this test too. The Service held that New York's bridges and roads connect the state to the national transportation system, and that maintaining them properly served interests well beyond the state's borders without hurting the interests of other regions (as might the building of a dam). In reaching this conclusion, the decision suggested that the individual's own activity must have a significant national impact. Here, the INS pointed out that, while pro bono legal services and education both serve the national interest, "the impact of a single schoolteacher in one elementary school would not be in the national interest [for purposes of waiving the job offer]." Nor would the services of a single lawyer working pro bono. The decision might have used better illustrations. A single lawyer leading the prosecution of an antitrust case could well serve the national interest, though volunteering her services. And the teaching disciplines pioneered by a grade-school teacher, like Maria Montessori, could revolutionize U.S. pedagogy. What the Service is driving at and then explains is that some local work, no matter how important it is where done, can attenuate in the national sphere and leave no significant impress.

3. The final test is specific to the immigrant and introduces a novel concept: "The labor certification process exists because protecting the job opportunities of U.S. workers having the same objective 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 in the labor certification process." (footnote omitted)

Against this test, NYSDOT's request for a waiver foundered. Although agreeing that the state's engineer was eminent and played a significant role in maintaining New York's highways, the Service effectively held that he was not influential enough in his field to benefit the national interest. For example, a footnote points out that he trained in a certain new technological method, he did not design it. (But the decision carefully notes that while innovation may be a significant factor it is not always enough.)

In NYSDOT's discussion of the third test for the national interest waiver, two key points emerge. One is the Service's dismissal of the claim that the engineer was needed to ameliorate a critical labor shortage, in view of the availability of the labor certification process to test and accommodate that very claim. [Dan: Steve thought the following sentence should run as a footnote, the only one. The NYLJ ran it as text as follows: (leave it up to you.] Note: Contrary to the suggestion of one acute observer, however, the decision is not so perverse as to say that that the waiver should only be granted if there is a surplus of U.S. workers. See William A. Stock, Building Bridges No More, 3 Bender's Immigration Bull. 873, 876 (Sept. 1, 1998). Two is the Service's recognition that the certification process is an imperfect measure. The regulations of the Department of Labor only permit the certification application to test whether there are U.S. workers who have the basic qualifications for the job. The availability of a single U.S. worker who meets the minimum job requirements will defeat the labor certification and thereby deprive the potential employer of the immigrant's services, no matter how outstanding that immigrant may be. In reconciling these two points, the decision would permit the waiver only if the petitioner establishes 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."

How does NYSDOT deal with those occupations where the individuals are self-employed and can't use the labor certification process? There, the decision comes up with a similar test: the petitioner must demonstrate that "the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field."

NYSDOT goes beyond the comparative standard, however, by stating that the benefit to an immigrant's endeavor "must greatly exceed the 'achievements and significant contributions'" that an immigrant needs to establish "exceptional ability." It imposes this standard whether the immigrant seeks to qualify on the basis of exceptional ability or simply an advanced degree. In deciding whether the national interest will benefit, the Service looks to the immigrant's established record of achievement; it should not grant the waiver where the prospective benefit is "entirely speculative." Achievement in the academic area, for example, should reflect "some degree of influence on the field as a whole."

The INS Administrative Appeals Office (AAO) has since cited NYSDOT in denying the waiver to physicians who would provide care to the indigent population of medically underserved areas. Without contesting the intrinsic merit of such services, the AAO doubted that they would have more than a local impact, and noted that the shortage issue is best met by the labor certification process. See, e.g., Matter of --, EAC 98 084 54464 (AAO Nov. 17, 1998); Matter of --, WAC 98 080 53742 (Nov. 9, 1998). The AAO also relied on the NYSDOT analysis in denying the waiver to a program manager for a major purveyor of photographic products, noting that a successful waiver applicant has to offer a greater benefit than an applicant on the bottom rung of exceptional ability. See Matter of --, EAC 97 242 54162 (AAO Nov. 17, 1998).

Applying the same analysis, the AAO approved a national interest waiver for a "flutter engineer" in the aircraft industry. See Matter of --, A76 863 806 (AAO Nov. 9, 1998). Here, the immigrant was responsible for significant innovations, and credible experts called him an "invaluable resource." The AAO found that he represented "a greater benefit to the national interest than an engineer who meets the minimum qualifications for the position." For similar reasons it granted the waiver to a chemical engineer in the plastics industry. Although noting that these factors will not always yield a waiver, the favorable decision leaned heavily on this engineer's proven track record of important and novel accomplishments as one of the top people in a critical technology, and with qualifications that exceed "exceptional ability." See Matter of --, A76 447 742 (AAO Nov. 9, 1998).

Six months after NYSDOT, is the "curio cabinet" of national interest waivers closed or still ajar? Now, for a national interest waiver to succeed, it should involve an activity of substantial intrinsic merit and a benefit national in scope. Those tests are relatively easy to apply. Deciding however whether the individual is really someone special at the top rungs of her field is considerably harder. The applicants who make the cut are likely to have testimonials from independent experts at the highest level, ideally from government agencies. And their favorable impact on our national interest will be demonstrated by what they have already achieved, probably along lines that show a talent for innovation. But they don't have to be deskbound or wear a laboratory coat. As Matter of --, A76 863 824, 19 Immig. Rptr. B2-71 (AAO Sept. 4, 1999) demonstrates, the door is still open to a better-than-exceptional sculling coach who can help us row home an Olympic gold.

Biographical information: Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, the leading immigration law treatise, published by Matthew Bender & Co, Inc. (www.bender.com). Mr. Mailman is counsel to Satterlee Stephens Burke & Burke in New York City. He can be reached at smailman@ssbb.com. Mr. Yale-Loehr is of counsel at True, Walsh & Miller in Ithaca, New York (www.millermayer.com), and teaches immigration law at Cornell Law School. He can be reached at syl@millermayer.com.

This article originally appeared in the March 8, 1999 issue of the New York Law Journal (www.ljextra.com). Copyright © 1999 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

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