A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Thursday, May 10, 2012

Recent Decision on National Interest Waiver

Foreign professionals and researchers applying for employment-based permanent residence status may consider a request for a national interest waiver (NIW).  Normally, a foreign worker who wishes to apply for a green card through an offer of U.S. employment must obtain a certified Permanent Foreign Labor Application ("Labor Certification").  The Labor Certification is to show that the employer is not able to find a qualified U.S. worker who is able, willing and ready to do the job.  Applicants who apply for a national interest waiver are requesting that the Labor Certification requirement be waived because it is in the national interest of the United States.  

Unfortunately, the jobs that qualify for a national interest waiver are not defined by statute. National interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national interest. Applicants seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their green card application directly with USCIS.

The legal standard for adjudicating an NIW petition was clarified by an Administrative Appeals Office (AAO) decision, Matter of New York Dept. of Transportation in 1998.  In NYDOT, the Beneficiary possessed a master’s degree in civil engineering and was being petitioned to provide professional engineering services for the rehabilitation, replacement, maintenance and inspection of bridges. The AAO cited three factors that must be considered when evaluating a request for a national interest waiver. 

First, it must be shown that the foreigner seeks employment in an area of substantial intrinsic merit. Eligibility is not established solely by showing that the beneficiary's field of endeavor has intrinsic merit. In the NYDOT case, substantial intrinsic merit was found. The importance of proper maintenance of the state's bridges was sufficient to meet this first criteria.

Secondly, the petition must prove that the proposed benefit will be national in scope. In the NYDOT case, while the foreign engineer's employment in NYDOT was limited to the local area, New York's bridges and roads connected the state to the national transport system. Because the proper maintenance and operations of bridges and roads served the interests of other regions as well, the benefit was national in scope. 

Finally, the petitioner must demonstrate that the national interest would be adversely affected if a labor certification was required of the foreign worker. The engineer in NYDOT failed to meet this criteria because his contributions did not stand out among his peers, and therefore, his petition did not warrant a waiver of the Labor Certification.

A recent Administrative Appeal Office (AAO) decision from November 2011 provided some additional guidelines on the requirements of the NIW application.  An NIW petition filed by a post doc research scientist in the field of nanoscience and nanotechnology was denied by the USCIS Texas Service Center.  The AAO reversed the denial on appeal mostly because the TSC failed to give proper evidentiary weight to the scientist's influential published work in his field.  Although he only had four publications, they were published in the well-known Journal of the American Chemical Society and were cited more than 400 times by his peers. 

The AAO also noted that the legislature history suggested that the standard of adjudication for NIW applications should be applied as flexible as possible.  According to the AAO, it does not matter that the petitioner's articles were published when he was still a graduate student, which is an issue for EB-1B outstanding researcher petitions.  Finally, the AAO also noted that Congress's intention is to grant national interest waiver on the basis of the merits of the individual applicant rather than the importance of a particular field of work; the nonscientist met his legal burden of proof for a national interest waiver.

In sum, the requirements for a national interest waiver are stringent.  But for those who meet the basic requirements, a waiver can substantially speed up the green card application process.

(For the current legal standard of NIW petitions, follow this link.)

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