National Interest Waivers

Persons who can demonstrate that their admission to the United States will be in the national interest can obtain a waiver of the job requirement and therefore substantially reduce processing time in obtaining an immigrant visa. The INS has severely restricted the use of national interest waivers. In Re New York State Department of Transportation (NYSDOT), the INS established a three-part test for national interest waiver approval:

Substantial Intrinsic Merit

Fields considered of “substantial intrinsic merit,” have included those that improve the economy, education, health care, housing and the environment in the United States.

National In Scope

An activity may have a benefit which is national in scope, even though limited to a particular geographic area. The ”national benefits” factor involves an analysis of the overall benefit to the nation of the beneficiary’s work, and if the work benefits some regions but harms others, the regional harm must be considered along with the regional benefit in determining the national benefit of the alien’s work.

There is a distinction between the situation where local activity has a national impact and situations where the alien works in an area of “substantial intrinsic merit,” but the alien has only a local impact.

“To a Substantially Greater Degree”

The presumption in each case is that if the alien is allowed to immigrate, a U.S. worker will lose a job. As a result, the alien must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Consequently, the fact that an alien has “unique” or “hard-to-find” skills does not establish the basis for the grant of a national interest waiver.

The alien must present evidence of a past record which justifies an assumption that the alien will have a prospective benefit. While there is no minimum experience or education required, there must be evidence of substantial achievement.

Although achievement need not be limited to prior work experience, the alien must clearly establish, an ability to serve the national interest to a substantially greater extent than the majority of others in the field. Consequently, an impressive publication record or a doctorate degree will not be sufficient if this is generally expected of someone in the field.