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 before petitioning for permanent residence.
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.
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) after the law was passed 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 was used in cases involving the sciences, arts, and professions.
The AAU 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.
While the Mississippi Phosphate Case is no longer the test for what is considered to be the National Interest, it still provides some guidance on what benefits could be regarded as in the National Interest.
The ultimate test is the New York State Department of Transportation 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 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.
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 lose 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.
Prior to the New York State Department of Transportation case petitioners had to prove why their services would be a benefit to the U.S.A. Today petitioners must present convincing argument to the USCIS why their benefit to the National Interest outweighs the protection of jobs for U.S. citizens by first offering the job to U.S. citizens (Labor Certification).
Outstanding work for Exeptional Ability case We strongly recommend Leon Snaid's immigration services. He meticulously guided us through the tedious US Immigration process and successfully put a petition together which was approved in record time. Leon's patience and professional courtesy coupled in with his sense of humor made him a delight to work with. We want to thank you for your dedication and commitment to help us continue to live our dream.
We do not have words to thank Mr. Snaid for his professional and outstanding support in helping us to get the approval of our National Interest Waiver case. He literally saved our case after years of waiting for a positive answer. Since the first time we met him, he told to us the facts of the case and he was very honest about our situation. As well, he explained in very simple terms, law issues which were critical to understand. He worked so hard in our case, all the time very responsible and providing great ideas and analysis. He is a truly remarkable immigration Attorney and we are sure he is among the best in his field in the US. Mr. Snaid was all the time giving us the necessary time; he was very patient and understanding. He really answer your emails, calls and even do if you do not have an appointment and want just to drop off some documents, if he is there, he will say hi and talk to you.
Do not mess around with other immigration Attorneys. If your case is a difficult one and/or you want to have the ... Snaid for his professional and outstanding support in helping us to get the approval of our National Interest Waiver case. He literally saved our case after years of waiting for a positive answer. Since the first time we met him, he told to us the facts of the case and he was very honest about our situation. As well, he explained in very simple terms, law issues which were critical to understand. He worked so hard in our case, all the time very responsible and providing great ideas and analysis. He is a truly remarkable immigration Attorney and we are sure he is among the best in his field in the US. Mr. Snaid was all the time giving us the necessary time; he was very patient and understanding. He really answer your emails, calls and even do if you do not have an appointment and want just to drop off some documents, if he is there, he will say hi and talk to you. Do not mess around with other immigration Attorneys. If your case is a difficult one and/or you want to have the confidence that you have experience, knowledge and an honest Attorney working side by side with you, please contact Mr. Snaid. Mr. Snaid, thank you so much for all your support, without you; we wouldn't be here. See you later, but now for the Citizenship.
Best Regards, Pedro and Dorota Sanchez
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