Historically, all but a few carefully defined classes of employment based immigrants have had to undergo the ordeal of obtaining an individual labor certification. In the 1970s, the Department of Labor promulgated something known as "Schedule A" - a collection of four principal groups of occupations for which the individual labor certification requirement was waived.
In 1991, as part of the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (MTINA), Congress created a new statutory classification for which the individual labor certification requirement would be waived: the national interest waiver ("N.I.W."). Section 212(a)(5)(C) of the Immigration and Nationality Act states that a petition filed under the employment based second category ordinarily requires a labor certification. Section 203(b)(2)(B) of the same Act, however, provides that
``the Attorney General may, when he deems it to be in the national interest, waive the requirement * * * that an alien's services in the sciences, arts, professions, or business are sought by an employer in the United States.''
Initially, the I.N.S.. resisted the idea of defining specific criteria for N.I.W. eligibility. The I.N.S. said that it believed that it was appropriate to leave the application of the national interest waiver as flexible as possible and that each case should be judged on its own merits.
In 1995, the I.N.S. published a notice of proposed rulemaking in the Federal Register in an effort to create regulations governing the submission and adjudication of national interest waiver petitions. That rule proposed a common sense approach to the issue and, had it been adopted, would have brought consistency and legitimacy to I.N.S./C.I.S. adjudications of these petitions.
Unfortunarely, the I.N.S. (and subsequently, the C.I.S.) failed to follow through on the proposed rule. Though the organic legislation creating this category became law more than fifteen years ago, there are no regulations in place establishing adjudications criteria.
A few years ago, the I.N.S. designated an administrative appeal decision in Matter of New York State Department of Transportation as a "precedent." This is highly unusual since this purported "precedent" decision is not based on lawfully promulgated regulations. Rather, it is a unilateral implementation of agency policy and a clear attempt to end run the Administrative Procedures Act, which requires regulations to be promulgated through public notice and comment.
Notwithstanding the publicaton of the N.Y.S.D.O.T. decision, as it has become known, the C.I.S. adjudicators are not even following the guidelines established there. The unfortuante fact of life is that it is often easier for a beneficiary to qualify for classification in the first preference category as an alien of extraordinary ability, than it is to qualify for a national interest waiver.
