EXCEPTIONAL ABILITY/NATIONAL INTEREST WAIVER

The Immigration Act of 1990 created a new category for obtaining green cards.

If someone has exceptional ability in the arts, sciences or business AND those skills would be in the national interest, it is not necessary to have a labor certification.

It is necessary to discuss two concepts:

Exceptional Ability AND National Interest.

A. EXCEPTIONAL ABILITY

This is an ability that "will substantially benefit prospectively the national economy, cultural or educational interests or welfare" of the country.  The ability must be a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business. 

In order to be regarded as someone with exceptional ability it is necessary for the alien to show at least three of the following requirements:

(1) A degree or similar award from a college or other institution of learning relating to the area of exceptional ability;

(2) Evidence that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

(3) A license or certification to practice the particular occupation;

(4) Evidence that the alien has commanded remuneration for services which demonstrate exceptional ability;

(5) Evidence of membership in professional associations;

(6) Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations; or

(7) Comparable evidence to establish eligibility if the foregoing standards do not readily apply to the alien's occupation.

B. NATIONAL INTEREST

In addition to proving exceptional ability, aliens must prove that their skills would be in the "national interest".

When this category for permanent residence was created in 1990, the words "national interest" were not defined within the Immigration Act or in the Regulations.

The first case to be decided by the Administrative Appeals Unit (AAU) was a case involving a self-petitioning businessman.  In this case, a "national interest test" was developed comprising seven factors that could be considered in determining whether a waiver of a job offer (and labor certification) is in the national interest. 

Although the test was specifically limited to aliens of exceptional ability in the business field, this test has been used in cases involving the sciences, arts, and professions. 

The AAU has declined to recommend that its first decision, the Mississippi Phosphate Case be regarded as a precedent decision.  In March 1993 the Director of the AAU stated that it was not his inclination to recommend that the decision be designated a precedent. 

He felt that since standards were still evolving, he wanted the test to remain as flexible as possible and not bound by precedent.   Despite the above comments, the "business test" was an extremely important guideline to the Immigration Service in considering all occupations.

This was the approach adopted by the INS until August 1998 when the INS decided the case of Matter of New York State Department of Transportation.

The full implications of this decision are still unknown.  It is clear, however, that the INS wishes to restrict the test laid down in the Mississippi Phosphate case.

This article will first deal with the test developed by the AAU in the Mississippi Phosphate case and then discuss the New York State Department of Transportation case.

MISSISSIPPI PHOSPHORATE CASE

The AAU provided seven factors that could be considered in deciding whether a person's presence in the U.S.A. would be in the national interest.  Only one factor had to be satisfied to prove national interest.

The test was:

(1) Improving the U.S. economy; or

(2) Improving wages and working conditions of U.S. workers; or

(3) Improving education and training programs for U.S. children and under-qualified workers; or


(4) Improving health care; or

(5) Providing more affordable housing for young and older, poorer U.S. residents; or

(6) Improving the environment of the United States and making productive use of natural resources; or

(7) A request from an interested U.S. Government agency.

The Mississippi Phosphate Case showed a direct saving and creation of jobs and infusion of millions of dollars in revenues into a depressed area.

In August 1998, the INS set new standards for National Interest Waivers in the case of New York State Department of Transportation.

In summary, there are three main issues that must be proved:

A. Will the employment be in an area of substantial intrinsic merit?

B. The benefit to the US National Interest has to be "national in scope."  Accordingly, employment that would merely benefit a local or regional community would no longer be viewed as benefiting the national interest.

C. An alien seeking exemption from the Labor Certification process must present a national benefit so great as to outweigh the national interest inherent in the Labor Certification process.

The inherent national interest protected by the requirements of the labor certification process is to ensure that U.S. workers would not loose job opportunities to foreign workers. 

Accordingly, it would be necessary to show that the national interest would be adversely affected if the alien had to apply for a labor certification.

These new requirements are certainly more onerous than those stated in the Mississippi Phosphate case.

Until clarity is obtained, people considering petitions in the Exceptional Ability category would be well advised also to apply for Labor Certifications.   The Department of Labor is extremely slow in processing these certifications and a person in H-1B status could utilize all the time available to himself/herself under that visa before being granted Permanent Residence.

It is also essential to consider whether a worker would qualify in any other immigration categories.

- Main Employment Page