SUMMARY OF THE LAW ON NIW
                         (National Interest Waiver)

The Immigration and Naturalization Act (INA), Section 203(b)(2) and 8 CFR 204.5 provide that the requirement of a job offer and, thus of a labor certification, may be waived for immigration applicants who are of "exceptional ability in the sciences, arts, or business" or members of "the professions holding advanced degrees" if such a waiver is "in the national interest." Although the "national interest" test is not defined in the INA or the INS regulations, case law provides some guidance. In Matter of Mississippi Phosphate, EAC 92 091 50126 (AAU July 21, 1992), the AAU (Administrative Appeal Unit of the INS) set forth seven factors for consideration in determining whether a waiver of the job offer is in the national interest. These factors are:

1)   Improvement of the U.S. economy;
2)   Improvement of the wages and working conditions of U.S. workers;
3)   Improvement of education and training programs for U.S. children and under qualified workers;
4)   Improvement of national health care;
5)   Providing more affordable housing for young and/or older, poorer U.S. citizens;
6)   Improvement of the U.S. environment and making more productive use of U.S. resources; or
7)   Involvement of an interested U.S. governmental agency.

Most of the approved national interest waiver cases were based on one or more of the above seven factors.

8 CFR '204.5 (k) (3)(i) provides, To show that the alien is a professional holding an advanced degree, the petition must be accompanied by:

(A)   An official academic record showing that the alien has a United States advanced degree or a foreign equivalent degree; or
(B)   An official academic record showing that the alien has a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the alien has at least five years of progressive post-baccalaureate experience in the specialty.@

8 CFR 204.5(k)(3)(ii), provides that an alien may be of exceptional ability in the sciences, arts, or business if he produces at least three of the following:

1)   an official academic record showing the alien has a degree, diploma, certificate, or similar award from a higher learning institution relating to the area of exceptional ability;
2)   letters from his current or former employer(s) showing he has at least ten years of full-time experience in his current occupation;
3)   a license to practice the profession and certification for the profession;
4)   evidence of exceptional ability;
5)   evidence of membership in the professional associations;
6)   evidence of recognition for his achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Subsequent to Matter of Mississippi Phosphate, the AAU (currently "AAO" - Administrative Appeal Office) made a precedent decision in the case, New York State Department of Transportation, EAC 96-063-51031 (AAU, August 7, 1998). In this case, the AAU significantly restricted the application of the term "National Interest" by requiring, among other things,

(1)   The Alien's employment is national (as opposed to national or local) in scope;
(2)   The Alien's employment is in an area of substantial intrinsic merit;
(3)   National interest would be adversely affected if the alien is required to obtain a labor certification;
(4)   The alien's career achievements and abilities are significantly above those of U.S. citizens or permanent residents who perform the same or similar job functions.

The most difficult point to prove is how the U.S. national interest would be adversely affected if the alien is required to obtain a labor certification. At we all know, it is relatively easier to prove the positive requirements than to prove the negative requirements. Considering the impact of the new case law, this office has implemented a new policy of selectively taking on NIW cases only for those who are engaged in research in the fields of medicine, pharmaceuticals, biotechnology, chemistry, biology with limited exceptions for people who are engaged in research in other fields.

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Jian X. Kang
Attorney at law
TEL.: 858-278-5480;
Fax: 858-278-5481;
Web: http://www.jxkang.com
E-mail: jxkang@jxkang.com