Field Guidance on National Interest Waivers

U.S. Department of Justice
Immigration and Naturalization Service

HQ 70/8.5
425 I Street NW
Washington, DC 20536

April 7, 1999

MEMORANDUM FOR: William R. Yates - Acting Deputy Executive Associate Commissioner, Office of Field Operations
All Regional Directors
Service Center Directors

FROM: Michael D. Cronin, Acting Associate Commissioner Office of Programs

SUBJECT: Field Guidance on National Interest Waivers

PURPOSE: This memorandum provides instructions for the acceptance of certain national interest waivers filed pursuant to § 203(b)(2)(B) of the Immigration and Nationality Act ("INA") and approved prior to publication of Matter of New York State Department of Transportation, Int. Dec. 3363 (Acting Associate Commissioner, Programs, August 20, 1998)("NYSDOT").

Under the employment-based second preference category, members of the professions holding advanced degrees or aliens of exceptional ability must have a job offer and thus, labor certification. INA § 203(b)(2)(A). The job offer requirement may be waived, however, when the Attorney General "deems it to be in the national interest." INA § 203(b)(2)(B).

Congress has not defined the term "national interest." As a result, the Service published NYSDOT, the first precedent decision to examine the national interest waiver. This decision lists several factors that must be considered when evaluating a request for a national interest waiver. NYSDOT has caused some confusion, however, within §245 proceedings.

All national interest waivers approved prior to NYSDOT should be honored in §245 or immigrant visa proceedings provided that beneficiaries continue to seek employment or are

employed in the professional activity which provided the basis of the approval. In other words, petitions should not be reopened for rescinding approval of the national interest waiver or for requiring the petitioner to now prove entitlement under NYSDOT.