INS on National Interest Waiver Adjudication Policy

Aggie R. Hoffman, Esq.
6300 Wilshire Blvd., Suite 1560
Los Angeles, CA 90048

Dear Ms. Hoffman

I am in receipt of your letter, dated June 19, concerning Immigration and Naturalization Service (Service) policy on the adjudication of national interest waivers of job offers pursuant to section 203(b)(2)(B) of the Immigration and Nationality Act. In your letter, you express your concern with the effect of a proposed regulation on national interest waivers (see 60 FR 29771 (June 6, 1995)) and on the Service's current adjudication of these waiver requests.

Service centers should not be referring to the proposed rule in their decisions or requests for additional information. Until a final rule is published in the Federal Register, the Service's policy on determining requests for national interest waivers remains that each petition should be adjudicated on a case-by- case basis and that the petitioner has the burden of establishing that the waiver of the job offer and labor certification would be in the national interest. The service center director has the discretion to determine whether a particular petition meets that burden.

In your letter, you express your concern that service centers may withhold adjudication of requests for national interest waivers until a final regulation is issued. I agree with you that this would be inappropriate and that such I-140 petitions should be processed within the normal processing times.

I hope that this response will be useful to you.

Sincerely,

/s/Edward H. Skerrett
Chief, Immigrant Branch
Adjudications


10 May 1995

Aggie R. Hoffman, Esq
6300 Wilshire Boulevard, Suite 1580
Los Angeles, CA 90048

Dear Ms. Hoffman:

I am in receipt of your facsimile, dated April 27, concerning a national interest waiver requested on a petition which is pending before the Western Service Center. You contend that the service center is not following the regulations on employment-based petitions and request clarification on Immigration and Naturalization Service (Service) policy.

In your letter, you state that the alien seeks a national interest waiver as a member of the professions holdings an advanced degree. You claim that the Western Service Center is requiring evidence that the alien is of exceptional ability. As you note in your letter, the Miscellaneous and Technical Immigration and Naturalization Amendment of 1991, Pub. L. 102- 232, allowed professionals holding advanced degrees to be eligible to receive a national interest waiver. Service policy clearly allows advanced degree professionals to request a national interest waiver. We hope to issue a proposed rule in the near future which will amend the regulations accordingly.

You also state that the service center is requesting the petitioner to submit "ETA Forms A and B." The regulations clearly require the petitioner to submit Form ETA 750B, Statement of Qualifications of Alien in duplicate if a national interest waiver is requested. See 8 CFR 204.5(k)(4)(ii).

Because your letter concerns a petition which is currently pending before the Western Service Center, I suggest that you address your concerns with the Center Director, through channels. I hope that this response will be useful to you.

Sincerely,

Edward H. Skerrett
Chief, Immigrant Branch
Adjudications

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