1998, A Historic Year for the National Interest Waiver

Stars of 1998, Mark McGwire and Sammy Sosa.

The year 1998 was an interesting one. Clinton was in office. The dot com bubble was building. Mark McGwire and Sammy Sosa were hitting baseballs out of ballparks at a record rates. And, relevant to immigration law, the standard one had to satisfy to get a National Interest Waiver changed.

It’s worth looking at this change.

In 1998, the Immigration and Naturalization Service (INS) designated its first precedent decision, In re New York State Dep ‘t of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm’r 1998), discussing the standards governing national interest waiver requests. We’ll refer to this decision as “NYDOT.”

NYDOT continued the trend of tightening the standards for national interest waivers. Accordingly, NIWs became even more difficult to obtain.

Under NYDOT, a few factors had to be considered when evaluating a request for an NIW:

(1) whether the foreign national sought employment in an area of substantial intrinsic merit (the importance of the occupation or the field of endeavor had to be established);

(2) whether the proposed benefit would be national in scope (the emphasis of this factor was on the existence of a national goal that the worker’s proposed undertaking would promote); and

(3) whether the “significant” benefit derived from the foreign national’s participation in the endeavor considerably outweighed the nation’s interest in protecting US workers through the labor certification process (the national interest in the labor certification process was a strong adverse factor cautioning against the grant of the NIW).

The year 1998 was not a good year for many people who sought or wanted to seek an NIW. However, nothing lasts forever. Clinton would leave office somewhat ignominiously, the McGwire and Sosa would retire and be trailed by steroid accusations, and dot-com bubble would burst.

In a December 2016 precedent decision, USCIS’ Administrative Appeals Office (AAO) announced a new precedent, with a new analytical framework for adjudicating NIW requests. The new framework was meant to make it easier for foreign nationals (especially entrepreneurs) to get a waiver.

Will another framework come? Almost certainly.