National Interest Waivers
The National Interest Job Offer Waiver permits a qualified applicant to apply for Lawful Permanent Resident status in the U.S. without a Labor Certification or a specific offer of employment in the U.S.
Because the National Interest Waiver may only be solicited by an applicant who is qualified for the Second Employment-Based Immigrant Category (the “E2″ category), he must possess an “Advanced Degree” (or equivalent), or be a person of “Exceptional Ability”.
- “Advanced degree” means a degree above a Bachelor’s Degree.
- A Bachelor’s Degree together with at least five years of progressively responsible experience may be deemed the equivalent of an advanced degree.
- An applicant seeking E2 classification without an advanced degree must establish “exceptional ability”, which requires, among other things, at least ten years of experience in the job offered.
The term “national interest” was not defined in either the immigration statute or the INS regulations. However, a leading INS decision established the following guidelines to be used in adjudicating these petitions. The decision states that “national interest” may be found where the continued employment of the beneficiary will contribute to:
- Improving the U.S. economy, or the wages and working conditions of U.S. workers;
- Improving education and training programs for U.S. children and under qualified U.S. workers;
- Improving health care;
- Providing more affordable housing for young and/or older poorer Americans;
- Improving the environment of the U.S. and making more productive use of natural resources.
These factors are illustrative only. Other comparable evidence of the benefits that will accrue to the U.S. may be considered.
However, through the designation of a particular case as a precedent decision (Matter of New York State Department of Transportation (NYSDOT)), the INS has indicated that it is following much stricter guidelines in adjudicating National Interest Waiver petitions. Several factors will now be considered when evaluating these petitions. The revised guidelines are as follows:
- It must be shown that the alien seeks employment in an area that will substantially benefit the national economy, cultural or educational interests, or welfare of the U.S. However, a petitioner cannot establish qualification for a National Interest Waiver based solely on the importance of the beneficiary’s occupation or field. These cases will require that the emphasis rest with the overall value and potential of the beneficiary’s individual contribution to the U.S. – not the fact that he or she is working in a field of “high national interest.”
- It must also be shown that the proposed benefit will be national in scope.
- It must be established that the beneficiary will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. It is not sufficient for the petitioner simply to enumerate the beneficiary’s qualifications, since the labor certification process might reveal that an available U.S. worker has those qualifications as well.
The following are representative of the kinds of documentation which might support such a petition:
- Supporting letters from substantial recognized government agencies, cultural institutions, and national/international organizations with expertise in the field of question, which specifically mention the alien and explain why his/her work is in the national interest.
- Articles in major publications about the alien which denote critical acclaim or substantiate the high repute of the individual
- Critically acclaimed published books or articles where the alien is the primary or first author
- Secured patent(s) with evidence that the patented product, process, or innovation is actually being sold, used, or applied in the field
- Evidence that the alien is the head or “critical member” of a team working on a project of genuine national interest
- Evidence that the alien’s individual project is funded by a grant from a governmental agency or major scientific organization where the alien is listed in funding documents as the principal investigator. If evidence of this nature is submitted, it should be accompanied by a letter from the funding agency or organization clearly explaining how the project is in the national interest.
List of Documents Required for National Interest Waiver Petition:
- A brief description of the activities of the department or division in which you are conducting research, including such information as number of scientists, amount and source of funding, principal research accomplishments and focus
- A description of the importance of the work in terms of its importance to the “national interest,” including the important role you are playing in this effort
- A brief (2 or 3 page) narrative summary of your education, training, and work experience highlighting your significant research interests and accomplishments
- Copy of your Curriculum Vitae including list of publications
- Copies of publications
- Copies of all advanced degree diplomas or certificates
- Copy of any relevant documents such as the following: invitations to speak at meetings or review articles for publication, memberships in professional associations, patent information, confirmation of receipt of awards, honors, or scholarships, citation listings for your publications from professional indexes, and any magazine or newsletter articles which mention you or your work.
- Supporting letters from colleagues both inside and outside the U.S. in accordance with the guidelines provided
- Copies of passport and H-1 or J-1 visa documentation
- Copies of birth and marriage records (if applicable)
- Translations of any foreign language documents