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NATIONAL INTEREST
WAIVER (NIW)
If
they can demonstrate that it is in
the "national interest"
to do so, members of the professions
holding an advanced
degree or its equivalent, or those
whose permanent residence, due to
exceptional ability (see definition
of "exceptional ability"
below) in the sciences, arts or business
will benefit the U.S., may be eligible
for a waiver of the labor certification
requirement and/or waiver of a job
offer (for Physician National Interest
Waivers, click here).
Applicants
must show that, if granted permanent residence, they will substantially
and prospectively benefit the national economy, cultural or
educational interest or welfare of the United States.
At the time of adjustment to the green card, an applicant is
likely to be asked to demonstrate that s/he is continuing to
work in the field of expertise presented in the original application.
Since
the law surrounding the National Interest
Waiver has undergone major changes
over the last few years and, as a
result, is uncertain, we recommend
that if possible, those eligible for
an NIW apply in a more dependable
category such as extraordinary
ability or outstanding
professor/researcher. This
is particularly true for nationals
of countries with backlogs in the
employment based visa categories,
such as India and China, since the
National Interest Waiver provides
only Employment Based 2 (or EB2) classification
(as opposed to EB1 classification).
Due to
the unsettled state of the law and
difficulty of obtaining approvals
of National Interest Waiver petitions,
in many instances, an applicant may
be better off going through the PERM
process rather than through the National
Interest Waiver category.
NATIONAL
INTEREST: Background
On August
7, 1998, the INS issued a precedent
decision (In re New York State
Department of Transportation,
or NYSDOT) clarifying—and
arguably, substantially raising—
the standard for NIW applicants. The
standard has become similar to that
required for the extraordinary ability
category.
According to the NYSDOT
decision, an applicant must meet the following three tests:
- Applicant's prospective
employment must be in an area of
"substantial intrinsic merit."
However, the INS emphasized here
that eligibility for the NIW "is
not established solely by a showing
that the beneficiary's field of
endeavor has intrinsic merit."
Generally, the Service appears to
accept any established field of
expertise as being a field of substantial
intrinsic merit.
- The proposed benefit
must be national in scope.
This means that the applicant's
work should have an impact that
is national rather than merely local
in impact.
- The final requirement
for success in an NIW petition is
specific to the beneficiary. Petitioner
must show that "the national
interest would be adversely affected
if a labor certification were required
for the alien." That
is, "the petitioner must demonstrate
that it would be contrary to
the national interest to potentially
deprive the prospective employer
of the services of the alien
by making available to U.S. workers
the position sought by the alien."
If an applicant can show that his
or her qualifications exceed those
of a person with the same minimum
qualifications, then this should
technically satisfy this third requirement.
An applicant who is at the top of
his or her field and/or whose work
has had a significant impact on
his/her field of expertise would
presumably meet this criterion.
Prior to articulating the above, the INS had
suggested that the following 7 factors may be influential in
determining whether an applicant's work was in the national
interest: (1) improving the U.S. economy; (2) improving
wages and/or working conditions of U.S. workers; (3) improving
education and training programs for U.S. children and/or under-qualified
workers; (4) improving health care in the U.S.; (5) creating
more affordable housing for low income residents of the U.S;
(6) improving the environment and/or conserving natural resources;
or (7) working on behalf of a U.S. government agency.
PROFESSIONALS
HOLDING AN ADVANCED DEGREE
"Advanced degree" is
defined as postgraduate experience beyond a bachelor's degree
(at a minimum, a master's degree or its equivalent). The
"equivalent" of a U.S. Bachelor's degree is the foreign
equivalent of that degree followed by at least 5 years of progressive
experience in the specialty. No amount of experience may
be substituted for the bachelor's degree in establishing eligibility
in this category. In addition, if applicant's specialty
customarily requires a doctoral degree, applicant should possess
such a degree.
EXCEPTIONAL
ABILITY
The
law defines "exceptional ability"
as "a degree of expertise significantly
above that ordinarily encountered."
The regulations list six factors that
denote exceptional ability; if an
applicant meets at least three of
these, s/he will qualify under this
standard. These factors include:
(1) degree; (2) license; (3) ten years
of experience; (4) high remuneration;
(5) display of work; (6) publication
of work.
Those who have an advanced
degree need not satisfy the exceptional
ability standard.
Please
note that we will accept a National
Interest Waiver case only if we feel
it has a high chance of success after
examining the prospective client's
credentials and subjecting them to
an analysis of the regulations and
the latest trends in adjudication
of this case type.
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