Telephone: (334) 832-9090
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Copyright 2002, Boyd F. Campbell, All Rights Reserved
Waivers in the national interest
By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary
U.S.
immigration law provides a means for aliens of exceptional ability and
for advanced- degree professionals to file petitions with the Immigration
and Naturalization Service, on their own, for permanent residence ("green
cards") without an offer of employment. Essentially, the alien petitioner
must show that his or her admission to the United States for the purposes
of immigration would be in the "national interest" of the United States.
Qualifying aliens obtain a waiver of the labor certification requirement,
which can be lengthy and costly.
Another
waiver -- this one waives the two-year foreign-residence requirement for
J-1 visa holders -- may be requested by an interested U.S. government agency
in the "public interest." There is no real distinction between these
two terms -- "national interest" and "public interest" -- and there has
been some recent, interesting interpretations of the terms by federal courts.
Approval
of a national interest waiver means the alien is not required to have a
job offer and is not required to go through the labor certification process.
Waiver of the two-year foreign residency requirement for J-1 visa holders
simply means that the J-1 visa holder may change his visa status without
returning home to live for two years before returning to the United States.
Waivers of the two-year foreign residence requirement
Of particular interest in my area is the Appalachian Regional Commission, which sponsors waiver requests for physicians who will be engaged in clinical practice. Physicians also obtain waiver requests from the Department of Housing and Urban Development, the Department of Agriculture, and the Department of Veterans Affairs. The Department of Health and Human Services (HHS), the Department of Defense, and the Department of Education tend to process requests for scholars and researchers. The program seeking agency support must:
1.
Show that the physician will practice in, or in a manner designed to serve,
a population in a "health professions shortage area" or a "medically underserved
area," as determined by the U.S. Public Health Service of HHS.
2.
Demonstrate that the program has engaged unsuccessfully in extensive recruitment
for a U.S. citizen or permanent resident physician for the position for
which the exchange visitor is being sought.
3.
Provide evidence of a contract between the J-1 physician and the health
care provider for two to four years, depending upon the agency.
4.
Demonstrate J-1 physician's satisfactory qualifications and strong recommendations.
Job offer, labor certification waivers
Waiver of the job offer and labor certification requirements is obtained by showing that the alien will provide a direct or indirect benefit through regional or local action, and case law suggests the following factors that might satisfy the "national interest" requirement:
1.
Improving the U.S. economy.
2.
Improving wages or working conditions for U.S. workers.
3.
Improving education and training programs for U.S. children and underqualified
workers.
4.
Improving health care.
5.
Providing more affordable housing for young and/or older, poorer U.S. citizens.
6.
Improving the environment of the United States and make more productive
use of natural resources.
7.
A request from a U.S. government agency.
What's new
Although the INS has had no success in restricting national interest waivers with federal rule-making, it has had some success with inferior adjudicatory bodies. In In Re: New York State Department of Transportation, the INS Associate Commissioner adopted a three-part test for national interest waiver approval, which stands as a precedent decision:
1.
The alien beneficiary must seek to work in an area of "substantial instrinsic
merit";
2.
The alien beneficiary's work must have a benefit which "will be national
in scope"; and,
3.
The alien beneficiary must "serve the national interest to a substantially
greater degree than would an available U.S. worker having the same minimum
qualifications."
This
third part of the test is the most onerous, and the most objectionable.
In evaluating the alien's prospective benefit to the United States, the
Associate Commissioner also opined that the INS will consider whether "the
alien's past record justifies projections of future benefits to the national
interest."
This
raises the bar far too high, and will surely be attacked by every U.S.
employer that stands to benefit from highly skilled foreign labor and every
immigration lawyer working in this area of the law today. Because
the INS emphasis has been turned toward the degree which the alien beneficiary
may exceed the accomplishments expected of any person with certain minimum
objective qualifications, it is likely that this opinion will be challenged
at every opportunity.
WARNING: Your future in the United States is too important to trust to just anyone. You should find and hire a qualified immigration lawyer to guide you and help you with a change in visa status or immigrant visa. If you do not know a qualified immigration lawyer, call the American Immigration Lawyers Association (AILA) in Washington, D.C., at (202) 216-2400.
Boyd F. Campbell is a member of the American Bar Association (ABA), the American Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB). He served as Chair of the Immigration Law Committee of the ABA's General Practice, Solo & Small Firm Lawyers Section, and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. He is also a memer of the ABA's International Law Section. Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002. He has practiced international, immigration, and federal employment law in Montgomery, Alabama, since 1988. Mr. Campbell is listed in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc. Access to this database of lawyers is available on the World Wide Web by subscription: www.bestlawyers.com. In August, 2001, Mr. Campell was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.
Questions or comments about this
article may be directed to:
Immigration
Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032
USA
Telephone: (334) 832-9090
E-mail: usvisa@visaus.com
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