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The sole issue on appeal is a national interest waiver


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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 in place—perhaps one that does not see this as a priority or that disagrees. You snooze, you lose!

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The sole issue on appeal is a national interest waiver

  1. 1. (716) 604-4233 or (716) 768-6506 Page 1 of 7 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The Sole Issue On Appeal Is A National Interest Waiver By Joseph P. Whalen (May 5, 2015) Several of the most recent AAO non-precedential EB-2 decisions just so happen to involve a single determinative issue each, the same issue, and therefore only one overarching question need be addressed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.
  2. 2. (716) 604-4233 or (716) 768-6506 Page 2 of 7 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
  3. 3. (716) 604-4233 or (716) 768-6506 Page 3 of 7 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.
  4. 4. (716) 604-4233 or (716) 768-6506 Page 4 of 7 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: for further links to various background materials such as Committee Reports. Strange interpretations have been offered in support of the “categorical NIW for
  5. 5. (716) 604-4233 or (716) 768-6506 Page 5 of 7 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
  6. 6. (716) 604-4233 or (716) 768-6506 Page 6 of 7 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) * 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) * 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
  7. 7. (716) 604-4233 or (716) 768-6506 Page 7 of 7 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. * 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:; reason-to-grant-a-national-interest-waiver; guidance-10292012;;;; Digitally signed by Joseph P. Whalen DN: cn=Joseph P. Whalen, o, ou,, c=US Date: 2015.05.05 18:19:42 -04'00'