14 years ago, the AAU (now AAO) in its NYSDOT precedent decision dealing with the National Interest Waiver (NIW) laid down its famous three-prong test which, since that time, has sharply limited access to what had been a popular and useful method*of avoiding the complicated, uncertain, time consuming and expensive labor certification process.*New York State Department of Transportation, 22 I&N Dec. 215 (Comm'r, 1998).*
Without going into too many details, the AAU held that in order for someone to be eligible for NIW, the petitioner has to show that it would be against the national interest to require the employer to go through the labor certification procedure, a pretty tall order. Since that time, no one has made the mistake of thinking that NIW approvals are easy to obtain. The message got across.*
But how well has this evisceration of the NIW statute served the American people? To take one example, how well has it served the interests of the people of New York, where the case originated? In its decision, which involved a highly talented and experienced highway engineer from India, the AAU stated:*
"The petitioner has not shown that it will suffer a substantial disruption in its efforts to maintain New York's bridges and roads if a national interest waiver is not granted and the petitioner is required to test the US labor market through the labor certification process."
But what is the state of New York's transportation infrastructure 14 years after this decision? In a Summer, 2012 submission to the New York Works Task Force of the New York State Department of Transportation entitled New York Works for Investment in Transportation Infrastructure,*the following statement appears:
"As a result, New York's infrastructure conditions rank among the lowest in the nation."
On Thursday, December 20, the Huffington Post carried a story about a chain of fiery crashes the day before on the Long Island Expressway, about 70 miles east of New York City, that killed a 68 year old woman and injured 33 others. The cause of the accident is under investigation, according to the article.
Of course, there is no evidence whatsoever that this crash would have been avoided if the NIW petition in NYSDOT had been approved and New York State had been permitted to hire a foreign engineer with superior credentials 14 years ago. But is there not something skewed, to say the least, in the priorities of an agency which seems more interested in keeping out talented foreign workers than in making it possible for the very best people to be hired to improve the safety and living standards of the American people?