As a general rule, the U.S. Citizenship and Immigration Services(USCIS) requires individuals seeking permanent residence under an EB-2 classification to have an existing job offer and an approved labor certification application before filing the employment-based immigrant petition (I-140). The EB-2 classification includes: aliens who are "members of the professions holding advanced degrees or their equivalent" and aliens "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States."
For those applicants who provide special and significant services in the scientific, or medical, or artistic, or business fields and benefit the U.S. economy or its general welfare as a whole, they may qualify for a waiver of the labor certification process, and also the exemption of a standing job offer if his or her admission would be in the national interest of the United States. There are certain positions that just don’t fit the traditional mold of labor certification, where recruitment efforts within the U.S. labor work force would seem unnecessary or impractical, or due to cost or other concerns, the employer is not inclined to petition on behalf of the applicant.
Labor Certification Exemption
Under NIW, or short for National Interest Waiver, there are no job offer requirements and recruitment guidelines which are generally required for a labor certification (PERM) filing. Furthermore, USCIS has not specifically defined what “national interest” entails and this certainly means an interested applicant should be as innovative as possible in showing how his/her unique background and endeavors fit U.S. national interest.
It is clear that there are cost savings with not having to undergo the recruitment process and the filing of alien labor certification. But there are also valuable time savings as well. Individuals who qualify for a NIW may skip the PERM alien labor certification process and directly file for I-140 immigrant petition. Also, if he/she is a citizen of a country that has available immigrant visas, he/she can concurrently file for I-485 adjustment of status petition. This means that it is entirely possible for the applicant to achieve U.S. permanent resident status as soon as a year or two after the filing of the initial application. Compared with the traditional form of filing, the time savings are clearly evident.
Qualifying Factors for Exemption
Although there is no statutory standard for determining what will qualify an applicant for a national interest waiver, USCIS administrative decisions indicate that the standard is very high. In particular, there are three (3) factors for the applicant to demonstrate when he/she pursues a NIW filing:
First, the alien must be seeking employment in an area of substantial intrinsic merit.
To meet this requirement, the alien must either hold an advanced degree or be an applicant of exceptional ability. Exceptional ability can be shown by proving that the applicant possesses any three of the following six factors:
- Bachelor’s degree related to area of exceptional ability;
- Letter from current or former employer showing at least 10 years experience;
- License to practice profession;
- Person has commanded a salary or remuneration demonstrating exceptional ability;
- Membership in professional association;
- Recognition for achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.
The type of documentation required must be specific and the applicant must be able to document his/her past accomplishments in the field of national interest. These accomplishments should be highly significant and be above and beyond what others have accomplished in the normal course of working in that particular field.
Second, the proposed benefit of the alien’s work must be national in scope.
While the applicant’s employment may be limited to a particular area, the work must benefit the nation. The following are examples of particular U.S. national government interests that an applicant’s work should address:
- Improving the U.S. economy;
- Improving wages and working conditions for U.S. workers;
- Improving education and training programs for U.S. children and under-qualified workers;
- Improving health care;
- Providing more affordable housing for young and/or older, poorer U.S. residents;
- Improving the environment of the U.S. and making more productive use of natural resources;
- Improving international cultural understanding; and/or
- A request from an interested U.S. government agency.
How to actually document what the specific national interest the applicant is pursuing is vitally important. While some fields are more obvious than others (i.e. life saving research vs. patent for improving production efficiency), the key is to gather as much diverse and variety of source materials discussing the particular endeavor and cumulatively demonstrate to USCIS that the applicant’s endeavor does qualify (publications in newspapers, journals, periodicals, government materials, or even news reports in general mass media are all helpful to generate impact of what is considered national interest).
Third, the petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.
The final threshold is specific to the alien and the most difficult to prove. An applicant seeking a waiver must present a national interest so great as to outweigh the national interest inherent in pursuing the labor certification process. To prove benefit to the nation, assurances that the applicant’s admission will serve the national interest in the future will not suffice. The applicant must clearly establish that he or she has a past demonstrable record of achievement that justifies projections of future benefit. Such a record of achievement would include influence on the field as a whole. In all cases, the applicant must demonstrate past achievement that establishes the applicant’s ability to benefit the nation. The applicant must be a proven leader in the given field and his or her accomplishments must far exceed those of the average individual in the same profession.
That means he/she should demonstrate the high degree of difficulty and uniqueness in his/her endeavors and how difficult it would be to replace his/her research experience or level of participation in a product or process development. This is when specific and detailed reference letters from peers and persons in the industry who may or may not personally know the applicant come in handy. In fact, USCIS does prefer that these letters come from those who do not personally know the applicant in order to highlight the objectivity of these letters.
These reference letters should come from diverse sources and point out how the applicant’s endeavors have helped benefit the reference letter writers’ own field of work, or other areas that the reference letter writer know about. As stated above, the letters should try to show how the applicant’s accomplishments far outweigh the work of the applicant’s peers in the field.
Supporting Documents Required
Because there is no precise definition of what constitutes national interest, we suggest an interested applicant submit as much additional evidence as possible to demonstrate eligibility for NIW.
Conclusion
In the end, with all the vast amounts of documentation, it is crucial for the applicant, via his/her attorney, to summarize and present and explain, in easily understandable format and content, to the adjudicators at USCIS how significant the applicant’s accomplishments are to warrant the approval of a NIW petition. The importance of an experienced immigration attorney to manage this process cannot be understated. At the end of the day, the NIW petition process can be an invaluable way to overcome the cost and time considerations of a traditional employment-based immigrant petition filed via alien labor certification.
Please note: Immigration laws and regulations are constantly changing and this article is provided for informational purposes only and is not to be construed or relied upon as legal advice under any circumstance. Please refer to our legal disclaimer for additional details.
Back