Immigration Law Update by James Parry Eyster National interest waivers of labor certification: a valuable opportunity for employers and qualified foreign nationals To work permanently in the United States, a foreign national must obtain a "green card" from the Immigration and Naturalization Service. The first step in obtaining this visa is receiving approval from the U.S. Department of Labor that the employer is paying at least the prevailing wage for the position and that he or she has been unable to interest a U.S. citizen or permanent resident in the position. In the recent past, this labor certification process took several months. It currently takes several years to complete the certification process and may soon increase to four years or more. Fortunately, there are four categories of employment-based visas which do not require labor certification. Given the immense delays in obtaining certification, these visas provide an important alternative for qualified applicants. The exempt categories are the following: (1) individuals possessing extraordinary ability in the sciences, arts, education, business, or athletics; (2) outstanding professors and researchers; (3) certain multinational executives and managers; and (4) foreign nationals possessing exceptional ability in the sciences, arts, or business and professionals with advanced degrees or their equivalent, but only when their work is "in the national interest." This issue of Immigration Law Update focuses on the fourth category and on the necessary elements for obtaining a National Interest Waiver of the labor certification requirement. I will address "outstanding professors and researchers" and the two other categories in future issues of this newsletter. Necessary Elements in a Successful Application Congress did not define the phrase "in the national interest" and the INS has refrained from introducing explanatory regulations, preferring to make determinations on a case-by-case basis. However, it has been stated by the Service that the applicant must meet a standard "significantly above that necessary to prove prospective national benefit" 56 Fed. Reg. 60,900 (Nov. 29, 1991). The INS grants waivers to foreign nationals of exceptional ability in the sciences, arts, or business. Evidence of exceptional ability may include: (i) an official academic record; (ii) letters from current or former employers indicating at least ten years of full-time experience; (iii) a license or certificate to practice the profession; (iv) salary and other remuneration demonstrating exceptional ability; (v) membership in professional associations; (vi) recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations; and (vii) other comparable evidence if these standards do not readily apply to a particular petitioner. [8 CFR 204.5(k)(3)(ii)] Petitioners must also be able to establish that they will continue in the field for which they claim a national benefit. Thus, a strong, lengthy background in a narrow discipline provides a much stronger position than a r‚sum‚ indicating research and work in a variety of unrelated areas. Similarly, while an offer of permanent employment is not required for a waiver, evidence of continued employment in the same field as that claimed to be "in the national interest" greatly strengthens the application. The primary guidance to the INS's interpretation of national interest comes from a 1992 decision issued by the Administrative Appeals Unit of the INS. The AAU in this case (commonly known as Mississippi Phosphate) set forth a list of seven factors that are to be considered in applying the national interest test to foreign nationals. According to the AAU, activities by foreign nationals that are in the national interest involve: (i) improving the U.S. economy; (ii) improving wages and working conditions of U.S. workers; (iii) improving education and training programs for U.S. children and under-qualified workers; (iv) improving health care; (v) providing more affordable housing for young and/or older, poorer U.S. residents; (vi) improving the environment of the U.S. and making more productive use of natural resources; or (vii) a request from a U.S. government agency. Although the AAU specifically limited its decision to exceptional ability in business, the Mississippi Phosphate standard has been applied to a variety of other cases. The AAU opinions reveal some of the key factors in the decision making process: (i) the quality of documentation; (ii) the level of support from government and from businesses deemed important in the field; and (iii) the foreign national's expertise and special skills. In addition, strong evidence of specific past accomplishments can be critical to showing the foreign national's "unique" skills and/or talents. In its national interest waiver decisions, the AAU has looked with favor on a foreign national who occupies a critical position in a project or who provides critical services on a project. Letters of support from government agencies or officials submitted on behalf of the foreign national have also substantially bolstered national interest waiver requests. Specific disciplines Sciences--The significance of the foreign national's research is easier to establish when there is explicit government interest, such as government funding or a letter attesting to the critical services the research scientist provides. Moreover, a lack of explicit government support for the research may be a serious negative factor. Social sciences--Advanced degree professionals must establish a potential benefit substantially exceeding the ordinary expectation of qualified members in their field. Arts and Other Cultural Activities--Foreign nationals pursuing artistic endeavors appear to face greater obstacles in obtaining a national interest waiver if their work is craft-oriented or skill-based. Business Cases--Those cases that fit neatly into the Mississippi Phosphate criteria have the best chances of approval. Evidence that the foreign national businessperson is a critical part of continued operations of the business at issue can be a very persuasive factor. Proposed Regulatory Changes The INS has proposed new regulations for national interest waivers. They would require a foreign national to establish that: (i) he or she has at least two years of full-time experience in the activity in which he or she will benefit the U.S.; (ii) the request for a waiver is not based solely on a local labor shortage; (iii) he or she will engage in an undertaking that will benefit the U.S. substantially and prospectively; and (iv) he or she will play a significant role in the undertaking described in (iii). A 1993 survey found that there was a 50 percent chance of success of a national interest waiver request. However, recent data indicate that the success rate has decreased to less than 30 percent. It is expected that once these new regulations are put in place, the approval rate will decrease further. Therefore, a foreign national with a good record, but lacking the elements required in the proposed guidelines, might wish to apply for a waiver before the regulations take effect. IMMIGRATION LAW Updates [(c)1997] are written and distributed by attorney James Parry Eyster as a professional service to the international and business communities. Information provided here is not intended to serve as legal advice nor as a solicitation for legal services. phone: 313-662-8084, FAX 313-747-7540, E-mail: jeyster@counsel.com James Parry Eyster Immigration and Nationality Law 709 West Huron Street, Suite 200 Ann Arbor, MI 48103 "Helping people to study, work, and live in America."