The straightforward and reasonable interpretation of “exceptional” and the criteria needed for a waiver of labor certification “in the national interest” were laid out in the Administrative Appeals Unit decision in the “Mississippi Phosphate” case. That clear decision has now been modified by another Administrative Appeals Unit decision, “in re New York State Department of Transportation.”

In New York State, the Administrative Appeals Unit was examining the applicability of a national interest waiver for a Civil Engineer hired by the New York State Department of Transportation. The engineer was claiming to be an expert on bridge and highway reconstruction and repair. The AAU held that the “national interest” waiver could not be granted. While the facts of the case are clear, the AAU decision unfortunately is not. Far from adding to the body of law and clarifying the criteria for a national interest waiver, the AAU decision does nothing other than confuse the issue.

First of all, it appears that the AAU seems to take the position that most – if not all – national interest waivers are simply a strategy to evade the burdens of labor certification. While bypassing labor certification is certainly one of the advantages of the national interest waiver, it is by no means the only advantage that qualified aliens seek. Due to their advanced research and skills, most “exceptional ability” aliens would find it difficult, if not impossible to quantify the skills in a labor certification application. Further, given the glacial speed of labor certification (2 ½ to 4 years depending on your luck!), an exceptional ability alien’s work and its immediate relevance will be old news by the time labor certification is approved.

Ignoring these obvious facts however, the AAU experienced a “knee jerk” reaction to the national interest waiver application. In New York State, the AAU continuously emphasized that the labor certification route must be taken. The AAU declared that the applicant must demonstrate why labor certification will be detrimental to the national interest. In setting up this barrier, the AAU has placed what may be an insurmountable burden on aspiring national interest applicants. Perhaps this reaction was only inevitable, given the fact that too many practitioners and too many aliens have filed “national interest” applications in borderline or even clearly inapplicable situations.

Reacting to the New York State decision, the four INS regional service centers which adjudicate the national interest waiver applications have begun returning applications pending at the service centers. Aliens must respond to lengthy lists of additional evidence in order to qualify for the NIV. For example, the Lincoln, Nebraska service center has listed the following seven additional areas of evidence that need to be presented:

Evidence that the benefits of the proposed employment will be national in scope.

Evidence that the employment is in an area of substantial intrinsic merit (which would be self-evident if the application was based on solid facts and qualifications).

Evidence that the alien can perform the duties of the proposed employment position (this seems to be an unnecessary requirement, because obviously the alien would not be filing an application for a national interest waiver if he or she could not perform the duties of the proposed employment).

Establish that the alien is not seeking a national interest waiver based on a shortage of qualified workers in a given field. (Here again, the national interest waiver was not intended to be a competitor to labor certification. It was not intended that the national interest waiver applicant be required to test the U.S. job market. Clearly, there are many researchers or many scientists in a given field. The issue is not whether there are qualified workers or not, the issue is whether the alien, based on his or her own independent merit, qualifies as an alien of exceptional

Demonstrate that any patent or innovation that the alien claims serves that national interest. (Here again, many patents and innovations are purely fundamental in nature. They may not directly serve the national interest in any tangible or quantifiable fashion. Most fundamental research tends to be non-commercial in nature, since such research forms the basis for future research and further innovations that may ultimately lead to commercial applications).

Establish a past record of specific prior achievement which justifies projections of future benefit to the national interest. (This requirements makes sense. Obviously, the track record of the exceptional ability alien must show a prospective future benefit is possible).

What is disconcerting about the current trend is the fact that the Nebraska Service Center has simply been returning pending petitions without reviewing them to first see if the petitions already meet the new criteria of the New York State decision. This buys the service center some time, since the alien then has to resubmit additional evidence or resubmit the existing evidence in the format requested by the service center. However, this creates an unnecessary extra burden for the alien and will also create an extra burden for the service center because they will now have two separate documents to review – first – the initial submittal, and second – the response by the alien.

None of this makes sense. The clear cut criteria set forth in Mississippi Phosphate are nowhere to be found in the New York State decision. The service centers have changed their requirements from the Mississippi Phosphate criteria to the cloudy and unclear language of the New York State decision. It also demonstrates that the immigration service is now taking a role that it was never required to do, which is protecting the U.S. work force. In this transitional period, as the dust settles around the New York State decision and the revised “national interest” criteria, it is clear that “national interest” has become significantly harder to prove.

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Copy right Farhad Sethna 1998 All Rights Reserved