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National Interest Waivers

Obtaining a National Interest Waiver (or "NIW") is another way by which a foreign national may obtain lawful permanent resident status in the United States. This route is only available to a foreign national who can establish that he or she qualifies for the Employment-Based Second Preference Classification (“EB-2”), and that the individual meets the three-part National Interest test established by the former INS (now USCIS) in the Matter of New York State Department of Transportation (“NYDOT”) in 1998. A national interest waiver is akin to the EB-1 priority worker petition; the bar is set very high, and preparation takes a great deal of effort on the part of the foreign national, and his or her attorney. As with priority worker classifications, a national interest waiver petition allows the employer to bypass the labor certification process, which can result in substantial savings in time and money. Like EB-1 Aliens of Extraordinary Ability, foreign nationals may "self-petition" for a national interest waiver.

 

In submitting an EB-2 NIW petition, the petitioner must submit evidence that the foreign national’s work has substantial intrinsic merit, will benefit the entire United States, and that the national interest would be adversely affected if the individual were required to go through the much longer labor certification process for obtaining a green card. Having exceptional ability is not, by itself, sufficient to meet the national reach criteria. It is essential that the petitioner be able to prove that the benefit provided to the United States by the foreign national's unique skills substantially outweighs the inherent national interest in protecting U.S. workers through the labor certification process. The requirements for EB-2 qualification and the national interest waiver test are laid out in greater detail in the sections below.

 

EB-2 Qualification

 

EB-2 eligibility is established by showing either that the individual is a professional holding an advanced degree or “equivalent,” or an alien of “exceptional ability.”

 

Professional Holding an Advanced Degree

 

An advanced degree is defined as “any United States academic or professional degree or a foreign equivalent degree above that of a [bachelors].” This definition includes most U.S. master’s degrees, doctorate degrees and graduate-level professional degrees (e.g. JD and MD). Foreign bachelor’s and master’s degrees, however, are not always considered equivalent to US degrees programs. Such degrees should therefore be professionally evaluated by an accredited foreign credentials evaluator prior to filing under the EB-2 classification.

 

EB-2 eligibility may also be established by showing that the individual has the equivalent of a U.S. master’s degree, which is strictly defined in the immigration regulations as: “a bachelor's or foreign equivalent degree, followed by at least five years of progressive experience in the profession.”

 

Aliens of Exceptional Ability

 

In order to establish EB-2 qualification based on “Exceptional Ability”, evidence of at least three of the following six items must be submitted:

 

  1. Academic records showing that the individual possesses a degree relating to the area of exceptional ability;

  2. Letters from current or former employer showing at least ten years of experience;

  3. License to practice his or her profession in the United States;

  4. Evidence that the person has commanded a high salary or remuneration demonstrating exceptional ability;

  5. Membership in professional association(s); and,

  6. Recognition for achievements and significant contributions to the industry or field by his or her peers, governmental entities, or professional or business organizations.

 

Other comparable evidence may be submitted if the above categories are not applicable to the industry. Comparable evidence may include expert opinion letters.

 

The "National Interest Waiver" Standard

 

In addition to showing EB-2 qualification, to qualify for a NIW, it must be established that the individual meets allof the following three criteria set out in the NYDOT decision:

 

  1. The individual is seeking employment in area of “substantial intrinsic merit”;

  2. The benefit of the individual’s work will be national in scope; and

  3. The national interest would be adversely affected if a labor certification were required.

 

This three-part NIW test establishes the threshold for establishing NIW qualification; whether a NIW petition is ultimately approved is determined at the USCIS' discretion.

 

Areas which have previously been recognized as involving “Substantial Intrinsic Merit” include: improving the U.S. economy; improving healthcare; improving the U.S. environment; providing more affordable housing; improving the working conditions and wages of U.S. workers; and improving education. The foreign national's work must also benefit the nation as a whole. Thus, where it can only be shown that the individual’s work benefits a city, state or region of the United States rather than the country as a whole, the petition will likely be denied.

 

The third and final criteria in the NIW test is often the most challenging. Since most foreign nationals who meet the EB-2 criteria are also able to work in the United States in H-1B non-immigrant status, and recent changes in the law allow such foreign nationals to continue to work indefinitely in that status while a labor certification is pending, finding a way to convincingly convey why requiring the person to go through the longer labor certification process would be contrary to the national interest is often difficult. One approach for overcoming this dilemma is to submit evidence on the impact of the delays and uncertainties inherent with the labor certification process on the individual’s ability to provide benefit to the United States. For example, a pharmaceutical development project which requires several years and millions of dollars may be adversely affected if it is unclear whether a key scientist on the project will be able to remain in the country and contribute to the project three or four years in the future. An NIW petition can be filed for the scientist showing that having to go through labor certification could hinder the development project, which may otherwise result in the discovery of important new pharmaceutical treatments. Where an individual with unique expertise or skills is prohibited from working on certain government projects deemed to be in the national interests because he or she is not yet a permanent resident (e.g., defense contracts), this should also be pointed out to demonstrate that requiring the person to go through the lengthy labor certification would be contrary to the national interest.