|
SECOND
PREFERENCE:
PROFESSIONALS WITH ADVANCED DEGREES
OR ALIENS OF EXCEPTIONAL ABILITY.
Labor certification is required unless a national
interest waiver is obtained. (See later.)
- Members
of the professions with advanced degrees or
the equivalent
- Aliens
of exceptional ability in sciences, arts, or
business
PEOPLE
OF EXCEPTIONAL ABILITY AND THE 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
It
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.
This
decision has severely limited the scope of the
National Interest Waiver.
We
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 Phosphate 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 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:
- Will
the employment be in an area of substantial
intrinsic merit?
- 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.
- 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.
|
