In June, the Director of the Immigration and Customs Enforcement (ICE) agency instructed his personnel to exercise broad “prosecutorial discretion” to allow people who are in the country illegally to remain here. Yesterday, Alejandro Mayorkas, Director of the U.S. Immigration and Citizenship Services (USCIS) agency, announced that his agency would exercise similar “discretion” to expand the number of visas allowing foreign nationals to gain permanent residence in the U.S.
Under existing immigration law, USCIS has the discretion to issue National Interest Waivers (NIWs) to allow foreign guest workers to remain permanently in the United States, even if they do not have a job offer here, if their continued presence “is in the national interest.” The newly announced policy emphasizes that an “entrepreneur” may act as an employer and petition for him/herself as an employee.
If you’ve never heard of NIWs, you’re not alone – but, no matter how obscure, if it exists you can count on the current administration to abuse it. The new liberal issuance of NIWs would apply to foreign nationals who can be classified as EB-2 workers. EB-2 is the classification for “Professionals with advanced degrees or exceptional ability.” The existing standard for receiving an NIW requires that they be individuals of “substantial intrinsic merit” and that the benefit of their work must be “national in scope.”
Under the initiative announced by USCIS, it appears that the standards for qualifying for an NIW will be relaxed and “national interest” will be more loosely defined. A USCIS press release states vaguely that individuals may qualify for NIWs “if they can demonstrate that their business endeavors will be in the interest of the United States.” In the “interest of the United States” is a substantially lower standard than possessing intrinsic abilities that makes one’s work “national in scope,” and seems to allow USCIS wide latitude to overestimate the value of people seeking NIWs. In other words, the current administration appears to be ignoring the law as it is written and implementing it as they wish it was written.