Aliens under the employment-based second preference may seek a waiver of the job offer and labor certification requirements through a national interest waiver. The requirements for national interest waivers are described below.
Although neither the Immigration and Nationality Act ("INA") nor the regulations of the Immigration and Naturalization Service ("INS") define the term "national interest", supplementary information to the INS regulations implementing the Immigration Act of 1990 ("IMMACT 90") state that the application of this test should be as flexible as possible. The adjudication of national interest waivers is done on a case-by-case basis.
The Administrative Appeals Unit ("AAU") provided some guidelines for national interest waivers in Matter of [name not provided], EAC 92-091-50126 (AAU July 21, 1992) which is usually referred to as the "Mississippi Phosphate" case. In that case, the AAU stated that the following factors were relevant:
- improving the United States economy;
- improving wages and working conditions of U.S. workers;
- improving education and training programs for U.S. children and other qualified workers;
- improving health care;
- providing more affordable housing for young and/or older poorer U.S. residents;
- improving the U.S. environment and making more productive use of natural resources; or
- involving a request from an interested government agency.
According to the Mississippi Phosphate case, satisfying any one of above factors (or relevant factors which are not specifically referred to on this non-exhaustive list) could be considered in the national interest.
However, the criteria applied may now be far more restrictive in light of Matter of New York Dept. of Transportation ("NYDOT"), Int. Dec. 3363 (Comm'r 1998), a recent precedent decision from the Administrative Appeals Office ("AAO"). In NYDOT, the Beneficiary possessed a masters degree in civil engineering and was being petitioned to provide professional engineering services for the rehabilitation, replacement, maintenance and inspection of bridges. The AAO cited three factors that must be considered when evaluating a request for a national interest waiver:
- It must be shown that the alien seeks employment in an area of substantial intrinsic merit. Eligibility is not established solely by showing that the beneficiary's field of endeavor has intrinsic merit. In the NYDOT case, substantial intrinsic merit was found. The importance of proper maintenance of the state's bridges was sufficient.
- It must be shown that the proposed benefit will be national in scope. This new requirement appears to contradict the previous view that an indirect national benefit from regional or local action would be sufficient. If this is the case, previously approvable cases (i.e. physicians providing health case in medically underserved areas) may now be at risk. In the NYDOT case, while the alien's employment in NYDOT was limited to the local area, New York's bridges and roads connected the state to the national transport system. Because the proper maintenance and operations of bridges and roads served the interests of other regions as well, the benefit was national in scope.
- The petitioner must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. At least according to NYDOT, the protection of U.S. workers inherently benefits the national interest. The national interest resulting from the alien's contribution must exceed this inherent national interest. In other words, an alien seeking a national interest waiver must prove that he or she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. This is a rather onerous requirement. The alien cannot simply play an important role in a project which significantly benefits the field of endeavor; he or she must personally present a significant benefit to the field of endeavor.
In addition to discussing the three criteria in national interest waiver cases, the AAO made the following observations:
- The petitioner's subjective assurance that the alien will, in the future, serve the national interest is not sufficient to establish prospective national benefit. While the national interest waiver hinges on prospective national benefit, it clearly must be established that the alien's past record justifies projections of future benefit to the national interest.
- Simply establishing a certain level of training or education is not sufficient to establish prospective national benefit.
- Arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish national interest. The mere fact that the alien is engaging in this field or seeking an as-yet undiscovered solution to the issue is not enough.
- The shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver.
NYDOT is a controversial and restrictive decision. As a result of NYDOT, the majority of previously approvable cases may now be ineligible for national interest waivers.
The Nursing Relief for Disadvantaged Areas Act of 1999 was enacted on November 12, 1999. As a result of the statute, foreign physicians are now subject to a much lower standard than described in NYDOT. The statute has amended the national interest waiver section of the INA to provide that the Attorney General "shall" grant a national interest waiver for foreign physicians if:
- The physician agrees to work full time in a designated health professional shortage area or in VA hospital; and
- A federal agency or State department of public health has determined that the physicians work is in the public interest.
The physician may not be eligible for an immigrant visa or adjustment of status until such time as he or she has worked full time as a physician in a shortage area or VA hospital for an "aggregate" of five years (not including time in J-1 status). However, petitions and adjustment applications can be filed prior to the date the five years’ service is completed.
This provision does not apply to waivers approved before the date of enactment. However, in the case of a physician for whom a national interest waiver was filed before November 1, 1998, the AG shall approve the waiver as long as the physician has worked in the shortage area or VA facility for at least three years (not including time as J-1).