Utilising the National Interest Waiver to obtain permanent residency in the United States
By Richard I. Fleischer
Posted: 31st May 2018 09:02U.S. employers who seek to petition for permanent residence on behalf of foreign national workers often face an uphill battle. However, for foreign nationals with advanced degrees or exceptional ability in the sciences, arts or business, the National Interest Waiver offers relief from many of the standard procedures that complicate employment-based petitions for permanent residence. This article will discuss the benefits offered by the National Interest Waiver to U.S. employers interested in sponsoring certain foreign nationals for permanent residency and to foreign nationals interested in receiving permanent residency in the United States.
To understand the benefits offered by the National Interest Waiver, a basic understanding of the typical process for obtaining employment-based permanent residency is necessary. U.S. employers are usually required to undergo the Labor Certification process when sponsoring a foreign national for permanent residence. The Labor Certification process requires the U.S. employer to advertise the position in specified ways, demonstrate that no qualified U.S. workers have applied for the position, and establish that the employer will pay the foreign national employee the prevailing wage for the type of position and geographic area of employment. The Labor Certification process is meant to protect the U.S. job market, but often leads to talented foreign nationals being excluded from permanent residency in the United States.
The most common issue that arises during the Labor Certification process occurs when a qualified U.S. worker responds to the mandated advertisements. Although the U.S. employer is not required to hire the qualified U.S. worker, the Labor Certification process fails, and the permanent residence petition will be denied.
However, the National Interest Waiver offers a mechanism to bypass the Labor Certification process entirely for qualified foreign nationals. Unlike standard employment-based permanent residency petitions, the National Interest Waiver allows qualified foreign nationals to petition on their own behalf. This is a great benefit to foreign nationals who are interested in petitioning for U.S. permanent residency independent of a U.S. employer.
To qualify for a National Interest Waiver, a foreign national must first demonstrate that he or she holds an advanced degree or possesses exceptional ability in the sciences, arts, or business. Second, the foreign national must demonstrate that it would be in the national interest to waive the Labor Certification process. In practice, a foreign national who only has an advanced degree, but who can’t demonstrate that he or she possesses exceptional ability will not be granted a National Interest Waiver. Therefore, it’s important to show that the foreign national has exceptional ability.
Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” In sum, a foreign national must demonstrate that his or her work is more impactful than most in the field. As will be described, impact is a crucial aspect of any successful National Interest Waiver Case.
After establishing a foreign national has exceptional ability the next task is to demonstrate that it would be in the national interest of the United States to waive the Labor Certification process. In December of 2016 the Administrative Appeals Office (“AAO”) of U.S. Citizenship and Immigration Services reassessed the standard for granting National Interest Waivers and established a new three-prong test. First, the AAO established that the foreign national’s proposed endeavor must have “substantial merit and national importance.” Second, the foreign national must be well-positioned to advance the proposed endeavor. And third, on balance, it must be in the interest of the United States to waive the labor certification process.
In essence, first prong requires the foreign national to demonstrate that the proposed endeavor will have an impact on the United States. The impact of a foreign national’s endeavor is best proved through letters of recommendation from other experts in the field. These letters should describe how the foreign national’s endeavor will impact the U.S. economically, or how the endeavor has and will continue to shape research in a valuable field of study.
Second, the foreign national must be well-positioned to advance the proposed endeavor. This prong looks both retrospectively and prospectively. A foreign national must demonstrate that he or she has been, and will continue to be, in a position to impact the field of endeavor. Here, we look to the foreign national’s status in the field and what type of work he or she plans on doing in the United States. As previously stated, a foreign national may self-petition for a National Interest Waiver. However, foreign nationals who have a job offer in the United States that will allow them to continue to impact the field in the United States often have an easier time of meeting this second prong.
Finally, on the balance, it must be in the interest of the United States to waive the Labor Certification process. This prong takes a more holistic look at the foreign national’s impact, and hinges on establishing that even if there are qualified U.S. workers in the field, it would be beneficial to have the foreign national in the United States.
In conclusion, the National Interest Waiver offers substantial benefits to foreign nationals interested in obtaining permanent residency in the United States, and U.S. employers seeking to employ exceptional foreign nationals.
Richard I. Fleischer is the Founder of the Fleischer Law Firm LLC, and has been practicing U.S.Immigration Law for over 45 years. Richard was one of the first attorneys in Ohio to specialise in this area. He focuses his practice on all aspects of Immigration Law including immigrant and non-immigrant visas, naturalization, and asylum. Much of his time and expertise is devoted to processing employer based labor certifications, national interest waivers of said labor certifications and outstanding researcher petitions. Richard has been extremely successfully obtaining these classifications for clients located throughout the United States.
Richard I. Fleischer can be contacted on +(513) 246-1212 or by email at firstname.lastname@example.org