ANational Interest Waiver (“NIW”) is very desirable as it waives the requirement of a US job offer and labor certification, cutting off much of the visa application processing time. However, NIWs are not just granted to any applicant. When applying under an NIW for an employment-based visa, you must produce at least 3 of the criteria under the exceptional ability standard and prove that it is in the national interest that you work permanently in the US. The Immigration Nationality Act does not give a specific definition of what constitutes “national interest,” so we look to precedent or case law of how the Court interprets the term. However, the standard does not stay constant as it seems to evolve over time. The following cases outline the evolution of the NIW standard and how it has affected applicants.
Mississippi Phosphate (1992)
The Court offered straightforward guidelines and held that the following criteria is considered when determining national interest.
The US economy;
US workers’ wages/working conditions;
Education for children and under-qualified workers;
Maintaining productive use of natural resources
Applicant provides more affordable housing for youth, elderly, or poor; or
A request for the applicant from an interested US agency
Six years following the ruling in Mississippi Phosphate, the Administrative Appeals Office modified stricter standards for granting NIWs; however, the reasoning was unclear as to why. At the time, the AAO emphasized the significance of requiring the labor certification route in relation to the issue of US worker shortages. Furthermore, the AAO opined that legislative history does not suggest that NIWs were intended simply as a means for self-petitioning foreigners to avoid the inconvenience of the labor certification process, and held that an applicant must demonstrate why the labor certification would be detrimental to the national interest.
The ruling in this case placed an insurmountable burden on aspiring national interest applicants. Moreover, it generated greater problems in the application processing system where many INS service centers returned NIW applications without a glance and issued RFEs asking petitioners for lengthy lists of additional evidence to be submitted. Overall, the ruling made the process more burdensome for both sides, and ultimately, NIWs were hardly administered and applications were never processed in a timely manner.
Years passed, and the NIW standard was still set under strict scrutiny. Finally, Kazarian brought suit against the USCIS in the Ninth Circuit Court of Appeals, claiming that the Service erred in its consideration of the criteria in his application. Ultimately, the Court found that the Service did err in its adjudication by imposing regulatory standards outside of the scope of the law. Here, the Court held that neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR §204.5. Overall, this relaxed the NYSDOT standard that imposed demanding requirements for applicants.
Lastly, we reach the status quo on the evolving requirements for NIWs. In order to form more consistent and efficient adjudication of NIW applications, the AAO established a framework that the USCIS takes when determining whether an applicant may be granted an NIW. Now, the USCIS uses the following three-prong approach:
Whether the foreign national’s proposed endeavor has both substantial merit and national importance;
That he or she is well positioned to advance the proposed endeavor; and
That, on balance, it would be beneficial to the US to waive the job offer and labor certification requirements.