What are the new stricter standards for the National Interest
In 1998, the INS significantly tightened the standards for
national interest waiver-based applications in Matter
of New York Department of Transportation (NYDOT). Whereas
national interest waiver applications used to be adjudicated on a
more lenient case-by-case basis, the NYDOT decision was a
significant milestone in a trend toward more scrutiny in the review
of these types of applications.
The following issues were highlighted in this decision.
of the foreign nationalís work: It is important that the
effect of the foreign nationalís work be felt nationwide. Simply
serving a regional locale is not sufficient. However, meeting this
requirement is not necessarily difficult as it is possible to
demonstrate how an individualís work, although done locally, can
serve the interests of other parts of the U.S. In the NYDOT case, the applicant was an engineer analyzing
bridges. The Administrative Appeals Office (AAO) determined that
this work was national in scope because the roads and bridges in New
York connected to the U.S. transportation system and maintaining
these were a benefit to other regions in the U.S.
in an area of significant merit: The national interest waiver
applicant must be working in a field that will benefit the entire
nation rather than a single geographical region.
interest versus protecting U.S. workers: The labor certification
process is designed to test the labor market to determine if there
are any U.S. workers minimally qualified to fill the position held
by a foreign national. The
purpose of this process is to protect U.S. workers and grant
permanent residency to an alien only in the event that no U.S.
minimally qualified worker can be found for the position.
NYDOT decision now requires a showing that approving an alien for a
national interest waiver will provide a significant benefit to the
U.S. and considerably outweigh the benefits of the labor
certification process. Unfortunately,
there is no checklist against which one can measure whether his
accomplishments are substantial enough to meet this demand. However,
simply showing that a person possesses unique skills and experience
is not likely to be sufficient. Moreover, asserting in a NIW
application that there exists tremendous potential for the work that
the foreign national is participating in is also insufficient.
consequence of the NYDOT decision is a larger number of denials of
applications that previously would have been approved. As the INS
scrutinizes each application more carefully, those who have superb
credentials and are making substantial contributions in their field
of endeavor are likely to continue to be approved under this
category. However, others not similarly situated will need to
consider other options to obtaining permanent residency.
to the National Interest Waiver page