NIW Petitions and Proposed Regulations

In December 1997, in a Liaison meeting between AILA and the INS, the INS addressed the issue of using certain guidelines in adjudicating I-140 national interest waiver (NIW) cases.

Some AILA members complained that certain INS adjudicators appear to apply criteria that were part of proposed regulations that were never adopted. Although INS has addressed this issue before, they outlined the factors taken into consideration.

INS stated the rule that the mere linking of a beneficiary to a standard national interest area, such as the education of our children, medical research, the environment, the U.S. infrastructure, medical care social services, the transportation network, the trade deficit etc., does not guarantee approval of a national interest waiver.

The requirement that the beneficiary should generally be shown to be playing a significant role in whatever national interest area he or she has expertise, which although a subjective criteria is, in their opinion, a relevant factor. The INS also stated that certain other unofficial criteria could be utilized in determing if the applicant satisfies the NIW criteria, even though such unofficial criteria cannot be cited as a regulation.

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 Proposed documents for employment eligibility verification (Form I-9)

The proposed regulations simplifying the burden of acceptable documents could be helpful to U.S. employers who feel burdened by paperwork requirements of the law.

The Immigration and Naturalization Service (INS)recently published a proposed rule in the Federal Register on Monday, February 2, 1998, which would reduce from 25 to 13 the number of documents that employers may accept when verifying the employment eligibility of new employees. The proposed changes would affect all employers nationwide and all newly hired employees.

Proposed List A (Documents that establish both identity and employment eligibility)

*United States Passport *Permanent Resident Card or Alien Registration Receipt Card (I-551) *Temporary Resident Card (I-688) *Employment Authorization Document (I-766, I-688B, or I-688A) *Foreign Passport with temporary I-551 stamp *For aliens authorized to work only for a specific employer, Foreign Passport with Form I-94 authorizing employment with this employer.

List A documents already eliminated by the interim rule on September 30, 1997:

*Certificate of United States Citizenship, Form N-560 or N-561 *Certificate of Naturalization, Form N-550 or N-570 *Re-entry Permit, Form I-327
*Refugee Travel Document, Form I-571

Proposed List B (Documents that establish identity only)

*Driver’s license issued by a state or outlying possession *ID card issued by a state or outlying possession *Native American tribal document
*Canadian driver’s license or ID card with a photograph (for Canadian aliens authorized to work only for a specific employer)

Current List B documents proposed to be eliminated:

  • *Identification card issued by federal or local authorities
  • *School identification card with a photograph
  • *Voter’s Registration Card
  • *United States military card or draft record
  • *Military dependent’s identification card
  • *United States Coast Guard Merchant Mariner Card
  • *School record or report card, daycare or nursery school record, or clinic doctor or hospital record (for individuals under age 18 who are unable to produce an identity document)

Proposed List C (Documents that establish employment eligibility only)

*Social Security account number card without employment restrictions
*Native American tribal document *Form I-94 authorizing employment with this employer (for aliens authorized to work only for a specific employer)

Current List C Documents proposed to be eliminated:

  • *Certification of Birth Abroad issued by the Department of State, Form FS-545 or Form DS-1350
  • *Birth certificate issued by a State, county, municipal authority or outlying possession of the United States bearing an official seal
  • *United States Citizen Identification Card, INS Form I-197
  • *Identification card for use of a resident citizen in the United States, INS Form I-179 *Employment authorization documents issued by INS other than those listed under List A

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 Improperly Filed 245(i) Cases

To be considered properly filed, an immigrant petition (Form I- 130 or Form I-140) which was filed prior to the January 14, 1998, deadline, the Petition must meet the following threshold filing requirements:

a) it must be accompanied by the appropriate filing fee;

b) it must be signed by the applicant; and

c) the applicant must have the immediate availability of an immigrant visa.

If an application does not meet these threshold requirements, the INS is supposed to return the application and the fee to the applicant with an explanation for the rejection.

Such incorrectly filed petitions will not be considered to have been filed within the January 14, 1998, deadline for protection under Section 245(i) of the Immigration and Nationality Act.

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