Employment-based visas that lead to permanent residence in the U.S., or a green card, have several different preference groups with different eligibility requirements. Most of these preference groups require a foreign national to have a full-time job offer in the United States and the filing of a labor certification application with the Department of Labor to obtain an official certification from the government agency that there is a shortage in the U.S. workforce before being able to proceed with the green card process. A foreign national generally cannot sponsor themselves. Employers may often be hesitant to sponsor a foreign national because the process can be expensive and time-consuming.
Fortunately, there are a few exceptions. Under the second employment-based preference category, EB-2, a foreign national would not need a specific job offer or labor certification if he or she were eligible for a National Interest Waiver (NIW). To be eligible, a foreign national must demonstrate they are (1) a member of a profession holding an advanced degree (doctorate, masters, or bachelor’s degree with five years of progressive work experience); or (2) a foreign national of “exceptional ability” whose employment will be of the “national interest.”
There are evidentiary requirements for demonstrating a foreign national’s area of work will be of national interest, but neither Congress nor USCIS has defined national interest in an attempt to allow the law to be as flexible as possible.
Threshold Evidentiary Requirements
To satisfy the threshold requirement under the NIW a foreign national must provide evidence that he or she possesses an official academic record showing receipt of an advanced degree (or the equivalent thereof) or letters documenting at least ten years of full-time experience in the applicant’s occupation, and if applicable, a license or certificate to practice the profession; and meets at least two or more of the following: (1) evidence the applicant has been paid a salary for their skill or profession; (2) membership in professional associations; (3) recognition of contributions to the field or industry by peers, business, or government entities; and (4) other comparable evidence.
Defining National Interest
On December 27, 2016, the USCIS changed the standard used to determine if an individual will serve the national interest.
1. Old Standard
Under the previous standard a foreign national needed to demonstrate their employment was (1) of intrinsic value; (2) national in scope; and (3) that the national interest would be adversely affected by the requirement of a labor certification. This standard was interpreted narrowly and required a foreign national to demonstrate their work was not limited geographically and their employment would serve the national interest more than an available U.S. worker.
Under this standard, a teacher was denied a NIW because her work only improved the lives of the children in her school and did not impact the entire United States. The USCIS was not persuaded by her argument that teaching was national in scope because she worked with minority students and helped provide equal education to all races. Even though equal education is a national issue, her work did not impact the field as a whole.
2. Matter of Dhanasar
In 2016 USCIS changed the standard it would apply to NIW applications. Under the new standard a foreign national must present evidence that (1) the foreign national’s proposed endeavor has substantial merit and national importance; (2) the foreign national is well positioned to advance that endeavor; and (3) it would be beneficial to the United States to waive the labor certification requirement.
Under the first prong, substantial merit is to be interpreted broadly and includes fields of study such as health, education, culture, and entrepreneurialism. Additionally, a foreign national’s endeavor may be deemed meritorious even if the endeavor will not and may not translate into economic benefit for the United States as long as the endeavor advances human knowledge or has some impact on the field as a whole.
National importance under the first prong is not limited to foreign nationals who will impact the entire United States. Enhancing certain geographic processes, such as improving manufacturing in the Rust Belt States, or providing positive economic effects to a particularly economically depressed region may be understood as being of national importance.
The second prong focuses on the knowledge, skill, and training of the foreign national. The inquiry is whether the foreign national has demonstrated by a preponderance of the evidence that he or she is well positioned to advance the proposed endeavor. In making such a determination the chances of the proposed endeavor’s success should not be predicted, rather the sole questions should be whether the foreign national has the skills and training necessary to advance his or her endeavor.
The third prong balances the foreign national’s qualifications with their ability to obtain a labor certification. Factors for consideration include whether it would be impractical for the foreign national to obtain a job offer prior to immigration (i.e. the foreign national’s particular skills are hard to demonstrate on an application for a labor certification), even if a U.S. worker is available would the U.S. benefit from the skills of the foreign national, and whether the foreign national’s skills are urgently needed.
Under the new standard, if a foreign national is able to demonstrate sufficient evidence to satisfy all three prongs, then they may be granted a NIW.
To file an application for the NIW the applicant must submit an I-140 form, an ETA-750B form, and all additional information to USCIS (check USCIS’s website for where to file as this information is always subject to change). Additional evidence that should be submitted includes the evidence of academic credentials or exceptional ability as listed above, letters of recommendation from experts in the field, letters from current and past employers, newspaper articles about the foreign national’s work, a resume, and any other documentation that helps demonstrate the level of competency and the importance of the foreign national’s job.
Letters and supplementary information must be submitted directly underneath the I-140 form. All the paperwork and the $700 application fee (current as of the date of this article) must be submitted at the same time. Failure to submit a completed application will result in it being dismissed.
Generally, an applicant will get a response within six months of their application. However, due to the current increasing processing delays at USCIS, applicant will want to check USCIS’s website for more up-to-date processing timeline information. Responses are mailed to the applicant; therefore, the applicant must update their address if it changes during the review process. During the review, the foreign national will be required to attend an interview and may be requested to provide supplementary information.
If approved and waiver is granted, the foreign national can immediately file for an I-485 for permanent residency if they are inside the country and a visa number is available.