EB2-NIW

Eb2 National Interest Waivers

A first preference applicant for an employment-based immigrant visa requires that the applicant demonstrate an extraordinary ability, be an outstanding professor or researcher, or be a multinational executive or manager. On the other hand, a second preference applicant for an employment-based immigrant visa must demonstrate a specific job offer and labor certification. However, foreign individuals seeking a second preference employment-based immigrant visa have the option of seeking a waiver of their offer of employment by showing that their admission as a permanent resident of the United States would be in the “national interest”. Establishing that his/her admission to permanent residence would be in the “national interest” is more difficult than regular EB-2 petitions. The procedure requires that the applicant file Form I-140, Immigrant Petition for Alien Worker, along with evidence to demonstrate that the foreign individual’s admission would be in the national interest. For example, a physician who agrees to work for a minimum of five years in an area in need of health care workers would qualify for a National Interest Waiver if a federal or state agency confirms that their work would be in the interest of the public.

However, it is important to keep in mind that a successful national interest determination does not in itself establish eligibility for second preference classification. While a national interest waiver waives a labor certification and offer of employment, the applicant must still satisfy the “entry” requirements for a second preference classification.

What Is “national Interest” As It Pertains To The National Interest Waiver?

The Immigration Act of 1990 states that the standards for a national interest waiver are, “significantly above that necessary to prove prospective national benefit”. However, neither statute nor pertinent regulation defines the term “national interest”. United States Customs and Immigration Services (USCIS) believe that it is best to leave the definition as broad as possible to ensure a flexible test. The burden of showing that exemption from, or a waiver of, a job offer will be in the national interest rests on the foreign national. The determination of national interest is judged on a case-by-case basis.

Generally, cases and decisions demonstrate that the government requires a fairly direct benefit to the community before it agrees that a specific employment is in the national interest. Factors that have been considered in successful national interest cases include:

  • That the foreign individual’s admission will improve the United States economy;

  • The foreign national’s admission will improve wages and working conditions of United States workers;

  • The foreign national’s admission will provide more affordable housing for young, aged, or poor United States residents;

  • The foreign national’s admission will improve the United States environment and lead to more productive use of the national resources;

  • The foreign national’s admission is requested by an interested United States government agency.

Applying the above criteria, on a varied array of circumstances, has resulted in a finding of national interest in a variety of occupations, including: corporate vice-president in a paper recycling company; a computer programmer for a company that locates disposal sites for radioactive waste; anthropology professor specializing in the cocaine-producing region of Peru, knowledge of which is necessary in United States drug interdiction efforts; a mall general manager of a new shopping center that local government officials believed vital to local economic well-being.

New York State Department of Transportation Decision

In 1998, in In re New York State Dept. of Transportation, the Board of Immigration Appeals designated its first precedent decision discussing the standards governing National Interest Waivers. The BIA determined whether the petitioner had established that a waiver of the job requirement, and thus a labor certification, was in the national interest. The BIA held that several factors must be considered when evaluating a request for a national interest waiver. First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. In order to prove substantial intrinsic merit, it must be shown that the field of endeavor is related to an important national goal and that the work is beneficial to the United States. Second, it must be shown that the proposed benefit will be national in scope. The final threshold is specific to the alien and the petitioner seeking the waiver must persuasively show that the national interest would be adversely affected if a labor certification were required for the alien.

Demonstrating Substantial Intrinsic Merit

In order to support the argument that the work is of substantial intrinsic merit, the foreign national must present evidentiary support showing in simple terms why their work is important and what the practical applications or benefits of that work to the United States. The foreign national may also present letters of recommendation from experts in the field, which explains the foreign national’s research and its implications and significance to the United States. In addition, the applicant should submit any other publications or reports detailing the significance of their field and the benefits of such work to the United States.

Examples:

The following are examples of National Interest Waiver cases that have been found to have substantial intrinsic merit:

  • Post-doctorial researcher who is in the field of medicinal chemistry is developing an anti-viral and anti-cancer drug that contributes to the health of millions in the United States;

  • A civil engineer who is working on improving the durability of asphalt, which improves infrastructure, safety, and transportation in the United States;

  • A consultant in the field of Petroleum Engineering improves the efficiency of energy production in the United States, and contributes to the development of environmentally friendly practices;

  • An opera singer brings the arts to society and thus contributes to the body of knowledge on vocal health;

  • A doctor in the field of gastroenterology contributes to the advancement of the diagnosis and treatment of digestive diseases, improving healthcare in the United States.

Demonstrating National in Scope

The second prong of the test requires that the foreign national’s work be national in scope. In other word, the benefits of the applicant’s work cannot be limited to one particular geographical region. In order to demonstrate that the foreign national’s work will benefit the nation as a whole or is tied to a national goal, other forms of evidence can provide more support for these arguments. First, evidence of government funding can help substantiate the claim that work ahs benefits to the United States as a whole. Second, citations can show the impact ones work has on the field in question and can demonstrate that the work is being implemented and used by researchers nationally. Last, letters of recommendation can provide statements explaining the national impact of your work, as well as provide examples of how the work is being implemented or impacting different geographic regions.

Examples:
  • A medical researcher in oncology impacts national healthcare through research contributing to the development of cancer therapies;

  • A physician contributes to the advancement of diagnostic practices that are implemented nationwide;

  • A postdoctoral researcher in the field of electrochemistry contributes to performance of batteries, which can be used nationally;

  • A musician, through their nationwide performances and the dissemination of their music through CD sales, contributes to the artistic culture of the nation as a whole;

  • A geologist who studies mineral-water reactions contributes to water safety of the United States;

  • A web-developer contributes to the development of web-content that will be used across the country;

Demonstrating national interest is generally the most challenging element to satisfy and is vital to a successful national interest waiver approval. The petitioner seeking the waiver must persuasively show that the national interest would be adversely affected if a labor certification were required for the foreign national. It is important to keep in mind that the labor certification process exists because protecting the jobs and job opportunities of United States workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. Therefore, a foreign national who is seeking an waiver of this process must show that there exists a national benefit so great that it outweighs the national interest inherent in the labor certification process.

Documentary evidence demonstrating how the alien has impacted their field to a greater extent than their peers is required to satisfy this prong. Even though the evidentiary requirements are much stricter, it is useful to consider the criteria for EB-1A, Alien of Extraordinary Ability, when compiling evidence to support this prong.

Demonstrating National Interest
  • First, publications and citation records (such as journal articles, book chapters, and books) should be included with the petition in order to demonstration the alien’s past record of scientific achievement. It is helpful to accompany the publication record with a citation record for the field to show that the alien has a degree of influence above that of the average researcher in the field.

  • Second, letters of recommendation are an incredibly important aspect of the national interest waiver petition. Independent letters of recommendation, from those who have never worked or studied with you, collaborated with you, or advised your work will carry much more weight with the USCIS than letters from dependent recommenders. Letters of recommendation should discuss the petitioners research contributions ad their significance and also discuss directly on the benefit of the work to the United States nationally. Our office with draft all of your letters of recommendation for our client to ensure that the adequately demonstrate the implementation of their work. Moreover, our office will help our clients to chose the appropriate recommender and advise the client on how many letters should be provided. We ensure that the letters are tailored to meet the needs of each client’s particular case.

  • Third, the applicant should provide evidence to demonstrate the degree of influence s/he has had in their field. To do so, the applicant should highlight any instance of the application or utilization of your work. Citations are the best way to demonstrate this, but evidence can also be used to include letters of recommendation, patents, commercialization, contracts, and article downloads.A variety of evidence is essential in demonstrating how the foreign national is eligible for a National Interest Waiver. It is important to remember that a holistic approach must be taken to ensure that in all the supporting documents clearly demonstrate that the alien’s employment based visa will be in the national interest.

2013 USCIS Trends of National Interest Waiver Adjudication

In 2013, the USCIS changed the method of E-filing and routed all E-filed cases in the Nebraska Service Center. Although all immigration officers should follow the same adjudication standards set by the immigration law and USCIS regulations, it is not uncommon to see various officers using subjective standards. Immigration officers from the Nebraska Service Center issue Request for Evidence notices requesting specific evidence to satisfy the requirements of the National Interest Waiver.

SCHEDULE YOUR APPOINTMENT WITH NEAL DATTA BELOW.
During your first visit, Neal Datta will listen to your situation and create an action plan for you to win your case. The action plan that Neal creates will detail specific steps and dates that you will need in order to prevent being deported and to win your green card. Every situation is unique so to make the most of your time with Neal we suggest sending us an email with details of your case. Your email is

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Neal Richardson Datta, Attorney At Law, P.C.

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