IMMLAW—The National Consortium of Immigration Law Firms

IMMLAW—The National Consortium of Immigration Law Firms


Second Preference, including National Interest Waivers

ALIENS WHO ARE MEMBERS OF THE PROFESSIONS HOLDING ADVANCED DEGREES OR ALIENS OF EXCEPTIONAL ABILITY IN THE SCIENCES, ARTS OR BUSINESS

The Second Preference Category is divided into two categories including aliens who are "members of the professions holding advanced degrees or their equivalent" and aliens "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States."  8 USC §1153(b)(2).

Members Of The Professions Holding Advanced Degrees

A United States employer may attempt to obtain an immigrant visa for an alien employee who is a member of the professions in this second preference classification when the job requires an advanced degree and the prospective alien employee possesses such a degree.

The term "profession" has been defined for such purposes as a position which requires advanced knowledge in a specific field of science or learning obtained by a prolonged course of specialized studies.  Matter of Shin, 11 I&N Dec. 686 (Dist. Director, 1966).  The alien must be a member of the professions at the time the employer initiates the qualifying process.  Diaz v District Director, Immigration and Naturalization Service, 468 F.2d 1206 (9th Cir. 1972), Matter of Katigbak, 14 I&N Dec. 45 (Reg. Comm. 1971).  Professions include, but are not limited to, those occupations cited in 8 USC §1101(a)32.

An advanced degree is defined as any United States academic or professional degree or foreign equivalent degree above the baccalaureate level.  8 CFR §204.5(k)(2).  A United States baccalaureate degree followed by a minimum of five years of progressive experience is deemed the equivalent of a masters degree.  8 CFR §204.5(k)(2).

Aliens Of Exceptional Ability

Second Preference classification is for an alien of exceptional ability in the sciences, arts or business.  The employer must establish that the individual has a degree of expertise significantly above the ordinary as shown by evidence satisfying at least three out of six criteria: (1) an official academic record showing a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the field of learning; (2) at least ten years of full-time experience in the occupation documented by letters from current or past employers; (3) a license to practice the profession or certification for the particular profession or occupation; (4) evidence that the alien has commanded a salary or other enumeration for services which demonstrates exceptional ability; (5) membership in professional associations; (6) recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations; or other comparable evidence.

The "exceptional ability" standard for the second preference category is lower than the "extraordinary ability" standard in the first preference category.

Labor Certification

U.S. employer desiring to obtain an immigrant visa for an alien employee under second preference classification as a member of the professions holding an advanced degree or as an alien of exceptional ability must submit an approved labor certification from the U.S. Department of Labor, an application for Schedule A designation, or documentation establishing that the alien qualifies for one of the shortage occupations in the Department of Labor's Labor Market Information Pilot Program.  8 CFR §204.5(k)(4)(I).

National Interest Waiver

The requirement that an alien's services in the professions be supported by a job offer from a United States employer may be waived under the second preference category by the Attorney General if it is deemed to be in the "national interest".  8 CFR §204.5(k)(4)(ii).

Current CIS regulations provide no definition for national interest.  The courts have interpreted the term "national interest" broadly in other contexts.

Several recent non-precedent CIS decisions have set forth the following criteria which may be used to determine the national interest, recognizing that not all of the criteria need be satisfied:

  1. Improving U.S. economy;
  2. Improving wages and working conditions of U.S. workers;
  3. Improving education and training programs for U.S. children and under-qualified workers;
  4. Improving health care;
  5. Providing more affordable housing for young and/or older, poorer U.S. residents;
  6. Improving the environment of the United States and making more productive use of natural resources; or
  7. A request from an interested U.S. Government agency.

On June 6, 1995, CIS proposed numerous significant amendments to the regulations governing "national interest waivers."  Public comments on the proposed rule were completed on August 7, 1995, however CIS has not published a final rule.

The proposed rule would allow professionals as well as advance degreed and exceptional ability aliens to seek a national interest waiver. The proposed rule would also provide a more complete definition of the term "national interest."

The proposed rule would require that the alien satisfy the following four elements to qualify for a national interest waiver:

  1. The alien must have at least two years of experience in the area in which he/she will benefit the U.S.;
  2. The alien must document that the national interest waiver will not be based on local labor shortages.  A "national interest" is  an interest that benefits the entire country and not just a small area;
  3. The alien must be involved in an undertaking that will substantially benefit "prospectively" the U.S.  The waiver should be premised on an activity that will further an important national goal;
  4. The alien must be functioning in a "significant role" in the activity that will benefit the U.S.

Recently the Administrative Appeals Unit issued a precedent decision which dramatically impacts the effectiveness of the national interest waiver.  In New York State Department of Transportation, E AC 96 063 51031 (August 7, 1998), hereinafter referred to as NYSDOT, the AAU held that a shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver.  The AAU further ruled that general arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish eligibility for a national interest waiver.

The AAU set forth a three prong test for adjudicating a National Interest Waiver Petition.

  1. First, NYSDOT requires that the alien must be seeking employment in an area of intrinsic merit.  NYSDOT’s discussion of the first prong states that decisions are to be made on a case-by-case basis.
  2. The second prong requires the petitioner to demonstrate that the proposed benefit will be national in scope.  The decision in NYSDOT requires a subjective determination in deciding whether specific employment serves a national benefit.
  3. Third, NYSDOT requires the petitioner to demonstrate persuasively that the national interest would be adversely affected if a labor certification was required for the beneficiary, i.e., that the national benefit offered outweighs the inherent national interest in the labor certification process.  As clarification, the AAU suggest that the third prong of NYSDOT requires a showing “that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making the position sought available to U.S. workers.”  The AAU indicates the third prong could also be satisfied by establishing that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Physician National Interest Waiver

In November 1999, Congress approved H.R. 441, which now allows alien physicians working in medically underserved areas to qualify for permanent resident status on the basis that their work is in the national interest.  The new law allows the approval of a national interest waiver petition filed on behalf of any alien physician who meets the following criteria:

  1. The alien physician must agree to work full time as a physician in an area or areas designated by the Department of Health and Human Services as having a shortage of doctors or at a health care facility run by the Department of Veterans Affairs.
  2. A federal agency or the department of public health for any State, which has previously determined that the foreign physician’s work in the area of the petitioning facility is in the public interest.  The physician must not be subject to the J-1 two-year foreign residence requirement.
  3. Physicians may not be afforded lawful resident alien status until he or she has worked for an aggregate of five years (not including time spent as a J-1 visa holder) in an area designated by the Secretary of Health and Human Services as having a health professional shortage area or in a Veterans Administration facility.
  4. Physicians previously approved for national interest waivers will not be affected by the new legislation.  Physicians with pending NIW petitions submitted previous to November 1, 1998, are not bound by the five year provision, and need only work three years in the health professional shortage area or in a Veterans Administration facility.  For every one else, the five year requirement applies.

Disclaimer: Nothing on these pages should be taken as legal advice for any individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, please contact an IMMLAW attorney.


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