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When The Sole Issue On Appeal Is
A National Interest Waiver
By Joseph P. Whalen (May 5, 2015)
Several of the most recent AAO non-precedential EB-2 decisions just
so happen to involve a single determinative issue each, the same issue, and
therefore only one overarching question need be addressed herein: “Does
the applicant1 qualify for a National Interest Waiver (NIW)?” Specifically,
those dismissals that pertain to requests for the NIW generally contain
something like the following:
The petitioner asserts that an exemption from the requirement of a job
offer, and thus of a labor certification, is in the national interest of the
United States. The director found that the petitioner qualifies for
classification as a member of the professions holding an advanced degree,
but that the petitioner has not established that an exemption from the
requirement of a job offer would be in the national interest of the United
States.
The basic restatement of the pertinent statutory language and the NIW
test are laid out below.
“I. LAW
Section 203(b) of the Act states, in pertinent part:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees
or Aliens of Exceptional Ability. -
(A) In General. - Visas shall be made available ... to qualified
immigrants who are members of the professions holding advanced
degrees or their equivalent or who because of their exceptional ability
in the sciences, arts, or business, will substantially benefit
prospectively the national economy, cultural or educational
interests, or welfare of the United States, and whose services in the
1 The NIW may be sought by a qualified self-petitioner or; by or, on behalf of, a qualified beneficiary, but
in either case, it is that recipient who is the true “applicant” for the waiver because it is finally decided
based upon their qualifications alone.

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sciences, arts, professions2, or business are sought by an employer in
the United States.
(B) Waiver of Job Offer-
(i) . .. the Attorney General3 may, when the Attorney General
deems it to be in the national interest, waive the requirements
of subparagraph (A) that an alien's services in the sciences,
arts, professions, or business be sought by an employer in the
United States.
The record reflects that the petitioner qualifies as a member of the professions
holding an advanced degree. The sole issue in the instant petition is whether the
petitioner has established that a waiver of the job offer requirement, and thus a
labor certification, is in the national interest.” 4
* * * * *
“In re New York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act.
Assoc. Comm'r [AAO] 1998) (NYSDOT), has set forth several factors which must
be considered when evaluating a request for a national interest waiver. First, a
petitioner must establish that she seeks employment in an area of substantial
intrinsic merit. Id. at 217. Next, a petitioner must establish that the proposed
benefit will be national in scope. Id. Finally, the petitioner seeking the waiver must
establish that she will serve the national interest to a substantially greater degree
than would an available U.S. worker having the same minimum qualifications. Id.
at 217-18.” Id. at 3
When it comes to the third and final prong of the NYSDOT NIW Test
(highlighted immediately above), AAO’s current understanding is summed
up in some oft-repeated verbiage and citations such as are incorporated in
the following excerpt. This final consideration, if the NIW inquiry reaches
this point, is very “person-centric” focused squarely on the alien beneficiary
or self-petitioner.
“With respect to the petitioner's personal track-record, academic records,
occupational experience, professional certifications, salary information,
membership in professional associations, and recognition for achievements are
2 The petitioner seeks employment as an educator, specifically, as a member of the professions holding an
advanced degree. The Director found this much to be fully supported so if there were labor cert. that would
have been the end—with a petition approval.
3 This statutory authority has shifted to the Secretary of Homeland Security.
4 APR062015_01B5203.pdf at p. 2. See also: APR032015_05B5203.pdf; APR222015_03B5203.pdf;
APR222015_01B5203.pdf; and APR102015_01B5203.pdf

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elements that can contribute toward a finding of exceptional ability. See 8 C.F.R. §
204.5(k)(3)(ii)(A)-(F). See section 203(b)(2)(B) of the Act. The regulation at 8
C.F.R. § 204.5(k)(2) defines "exceptional ability" as "a degree of expertise
significantly above that ordinarily encountered" in a given area of endeavor. By
statute, aliens of exceptional ability are generally subject to the job offer/labor
certification requirement; they are not exempt by virtue of their exceptional ability.
NYSDOT, 22 I&N Dec. at 218, 222. Therefore, whether a given individual seeks
classification as an alien of exceptional ability, or as a member of the professions
holding an advanced degree, that individual cannot qualify for a waiver just by
demonstrating a degree of expertise significantly above that ordinarily
encountered in her field of expertise. The national interest waiver is an additional
benefit, separate from the classification sought, and therefore eligibility for the
underlying classification does not demonstrate eligibility for the additional benefit
of the waiver. Although significant awards may be relevant to the question of the
petitioner's impact and influence on her field, the petitioner does not assert and
has not established that she is the recipient of any awards.” Id. at p. 5.
The NIW is viewed and treated as a completely different piece of the
puzzle. The waiver has a separate and higher threshold than the underlying
visa eligibility requirements. Yet another demand placed upon the alien’s
evidence, relates to its ability to instill confidence of future success, see the
following excerpt. These various requirements have truly hampered
anyone’s ability to obtain the additional benefit of a NIW.
“Although the national interest waiver hinges on prospective national
benefit, the petitioner must establish his past record justifies projections of
future benefit to the national interest. Id. at 219. The petitioner's subjective
assurance that he will, in the future, serve the national interest cannot
suffice to establish prospective national benefit. The inclusion of the term
"prospective" is used here to require future contributions by the petitioner,
rather than to facilitate the entry of an individual with no demonstrable
prior achievements, and whose benefit to the national interest would thus
be entirely speculative. Id.” Supra.
As illustrated below, some arguments really stink! In the following
excerpt the applicant, who, thank the powers-that-be, was an
unrepresented5 self-petitioner, latched on to a single example from NYSDOT
5 I would be disheartened if this argument were made by an attorney.

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and made an ass-backward argument based upon it. The example of a
teacher was used in NYSDOT to demonstrate a noble occupation that would
rarely if ever qualify for the NIW. Here, the teacher blames her H1-B
nonimmigrant visa status for “limiting her scope”.
“On motion, the petitioner states that the nature of her employment and
H1-B nonimmigrant visa status have "limited the scope of [her]
performance." The petitioner asserts that the school district controlled her
output and prevented her from implementing programs that "could have
helped the system more." Regardless of the circumstances of the petitioner's
employment and her assertion that her nonimmigrant visa and employment
situation have limited the scope of her influence on the educational system,
the petitioner must still demonstrate that she will serve the national interest
to a substantially greater degree than do others in the same field. NYSDOT
at 218, n.5. Eligibility for the waiver rests on the petitioner's individual
qualifications and the prospective national benefits of her work, rather than
on the circumstances that she asserts prevent her from compiling and
disseminating her work beyond [-----]. The petitioner has not shown that
her efforts have had more than a local impact, or that U.S. school systems
have successfully implemented her teaching methodologies.
The petitioner quotes NYSDOT at 217, n.3 regarding the limited scope of
elementary school teachers, and asserts that the quoted passage represents
"a pre judgment as to whether an Instructional Teacher will be able to
qualify for the waiver. ... If this is the case no single school teacher may
qualify for the waiver." Nonetheless, while the petitioner expresses her
disagreement with the quoted passage, she acknowledges NYSDOT's
finding that the impact of a single schoolteacher in one elementary school
would not be in the national interest for purposes of waiving the job offer
requirement. Id. …”
APR102015_01B5203.pdf at p. 5.
I have seen other unsuccessful arguments for teachers who claim that
Congress implicitly created a second categorical NIW for teachers by
passing the “No Child Left Behind Act of 2001” (NCLB Act). See:
https://www.congress.gov/bill/107th-congress/house-bill/1 for further
links to various background materials such as Committee Reports. Strange
interpretations have been offered in support of the “categorical NIW for

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teachers” argument based upon statements in Conference Report (reported
as: H. Rept. 107-334) relating to such considerations as: “TITLE II—
PREPARING, TRAINING, AND RECRUITING HIGH QUALITY
TEACHERS AND PRINCIPALS” and “TITLE III—LANGUAGE
INSTRUCTION FOR LIMITED ENGLISH PROFICIENT AND
IMMIGRANT STUDENTS” and various other parts of the NCLB Act. See
also the earlier Committee Report (reported as H. Rept. 107-63). USCIS and
AAO have disallowed this argument in total every time it has been presented.
Congress has demonstrated that it knows how to add a categorical NIW
because it has already done so for certain physicians. The EB-2 M.D. NIW
comes with many strings attached, and a special NIW for Teachers could
be created by Congress in the same fashion and in the very same section of
the statute that contains the physician waiver, and standard waiver. See INA
§ 203(b)(2)(B); 8 U.S.C. § 1153(b)(2)(B).
As the President has recently, and explicitly endorsed, and the
Secretary has consequently officially directed, USCIS must revisit the NIW
test. With that being the case and with the existence of NYSDOT, one might
naturally think that it would be accomplished in one of two ways. AAO could
issue a new Precedent, or USCIS could write new regulations. I do not know
if one method would be either easier or faster than the other would.
However, I do not think that the mere issuance of a Policy Guidance
Memorandum could suffice, legally. However, USCIS might try it anyway.
Revise Parole Rules *
DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the
United States, on the ground that their entry would yield a significant public economic benefit. DHS will also support
the military and its recruitment efforts by working with the Department of Defense to address the availability
of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who
seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance
parole” to leave the country – including those who obtain deferred action - they will not be considered to have

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departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they
depart.
 Executive Action: Revise Parole Rules - Entrepreneurs (2.6 MB PDF)
 Executive Action: Revise Parole Rules - Parole-in-Place and Deferred Action (711 KB PDF)
 Executive Action: Revise Parole Rules - Advance Parole (690 KB)
* http://www.dhs.gov/immigration-action
Support High-skilled Business and Workers *
DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled
foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example,
because our immigration system suffers from extremely long waits for green cards, we will amend current
regulations and make other administrative changes to provide needed flexibility to workers with approved
employment-based green card petitions.
 Executive Action: Support High-skilled Business and Workers (2.6 MB PDF)
* http://www.dhs.gov/immigration-action
C. Promoting Research and Development in the United States *
To enhance opportunities for foreign inventors, researchers, and founders of start-
up enterprises wishing to conduct research and development and create jobs in the
United States, I hereby direct USCIS to implement two administrative improvements
to our employment-based immigration system:
First, the "national interest waiver" provided in section 203(b)(2)(B) of the
Immigration and Nationality Act (INA) permits certain non-citizens with advanced
degrees or exceptional ability to seek green cards without employer sponsorship if their
admission is in the national interest. This waiver is underutilized and there is limited
guidance with respect to its invocation. I hereby direct USCIS to issue guidance or
regulations to clarify the standard by which a national interest waiver can be granted,
with the aim of promoting its greater use for the benefit of the U.S economy.
Second, pursuant to the "significant public benefit" parole authority under section
212(d)(5) of the INA, USCIS should propose a program that will permit DHS to grant
parole status, on a case-by-case basis, to inventors, researchers, and founders of start-
up enterprises who may not yet qualify for a national interest waiver, but who have been
awarded substantial U.S. investor financing or otherwise hold the promise of
innovation and job creation through the development of new technologies or the
pursuit of cutting edge research. Parole in this type of circumstance would allow these

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individuals to temporarily pursue research and development of promising new ideas
and businesses in the United States, rather than abroad. This regulation will include
income and resource thresholds to ensure that individuals eligible for parole under this
program will not be eligible for federal public benefits or premium tax credits under the
Health Insurance Marketplace of the Affordable Care Act.
*http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf
In conclusion, I have little to add to what I have previously offered.6
My main reason for writing today is to get folks thinking, talking—discussing,
and perhaps writing about this subject matter themselves. As I mentioned
to someone recently, I am getting lonely out here on this limb all by myself!
If there is to be any real hope for those many foreign inventors,
researchers, and founders of start-up enterprises yearning to bring
their efforts to the U.S. then USCIS, with or without AAO, has to get moving
on this task. Immigration advocates need to be vocal or risk having this
subject flounder until there is a new administration place—perhaps one that
does not see this as a priority or that disagrees. You snooze, you lose!
Dated this 5th day of May, 2015.
X
/s/ Joseph P. Whalen
That’s my two-cents, for now!
6 See: http://www.slideshare.net/BigJoe5/eb2niw-and-parole-amicus-brief;
http://www.slideshare.net/BigJoe5/is-the-alleged-shortage-of-cybersecurity-professionals-sufficient-
reason-to-grant-a-national-interest-waiver; http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-
guidance-10292012; http://www.slideshare.net/BigJoe5/a-realistic-look-at-an-eb2-niw-entrepreneur;
http://www.slideshare.net/BigJoe5/eb2-niw-entrepreneur-example;
http://www.slideshare.net/BigJoe5/niw-supplemental-worksheet-medical-research-example-7789896;
http://www.slideshare.net/BigJoe5/eb5-and-eb2-entrepreneur-cheatsheet
Digitally signed by Joseph P. Whalen
DN: cn=Joseph P. Whalen, o, ou, email=joseph.whalen774@gmail.com,
c=US
Date: 2015.05.05 18:19:42 -04'00'