Some Misunderstandings Regarding NIW Petitions

 

The national interest waiver (NIW) under the 2nd preference employment-based immigration visa category has become popular recently, because of the unique advantages that it offers to petitioners.  Unlike the other 2nd and 3rd employment-based preference categories, petitioners do not need sponsorship by a qualified U.S. employer.  Unlike the PERM labor application process, a job offer is not required for a national interest waiver petition.  It means that a foreign national may file their own petition for an immigration visa without first securing a job offer by an employer.   For instance, a graduate student may start her application before she even graduates.  However, despite this advantage, an NIW petition is not a trivial petition that is suitable for all applicants.  

Some immigration consultants and practitioners promote NIW as something that is easy to qualify, a short-cut to obtain a green card.  This couldn't be farther from the truth.  Although an NIW petition generally requires fewer qualifications than an EB-1A extraordinary ability petition, it has its unique set of criteria for which the petitioner must qualify.  Certainly, not all applicants with just a graduate degree, albeit in the STEM field, would qualify.  In fact, if a petitioner does not have a graduate degree, he may still qualify by showing that he possesses exceptional ability.

As a threshold requirement, a petitioner must establish that their proposed endeavor has both substantial merit and national importance.  An endeavor is simply the type of work that the individual seeks to engage in.  One common misconception is that simply by working in a meritorious field, an individual would qualify for NIW.  For example, an individual could be working in the field of medical research, which has national importance.  However, if person's work is only tangential or relatively routine, then it would be difficult to argue that this applicant's endeavor has substantial merit and national importance.  To evaluate whether the proposed endeavor has merits and national importance, we must look at the details of the work and provide evidence that it has potential prospective impact in the field.  In this case, if the applicant's research provides new insights about the cause of a specific type of cancer, then his argument would be stronger.  

Another common misunderstanding is that NIW is only suitable for applicants in the medical or scientific fields, as they are required to conduct experiments and publish research papers.  True, publication of research papers is a type of evidence that can be used to illustrate the petitioner's scientific discoveries and their impact.  However, professionals in other non-scientific fields may also qualify for an national interest waiver by presenting other types of evidence.  For instance, a financial professional can provide evidence to prove how their work has maintained the financial stability of an organization or the whole country.  An architect can present evidence to show that their work will bring environmental benefits by using sustainable design and reusable materials. A software engineer may have designed a system that has the potential to revamp the way we, as a nation, conduct business, process data, or perform certain activities. All these are possible candidates for NIW. 

A petitioner should not only list the possible things that he or she can possibly do as their proposed endeavors.  For example, an experienced software engineer cannot simply list all the possible software applications that she may design in the future, as her proposed endeavors. To present a strong and convincing NIW petition, she should only focus on the tasks that she will realistically be able to perform, if her NIW petition is approved. For instance, if she is working on developing AI data pipelines now, she should focus on this specific area.  

To qualify for NIW, a petitioner must also prove that they are well-positioned to advance the proposed endeavor.  As explained, one must first define well what their proposed endeavors are, with sufficient details and information.  Then, with these endeavors in mind, explain how the person's education, background, training, work experience, etc., will enable the person to perform the work involved. Also, are there any realistic opportunities for the person to perform these tasks?  Is the petitioner already doing what they propose to do, or are there plans to start a new company?  To increase the chances of approval, there must be a realistic and workable plan for the person pursue the proposed endeavors, if they are granted an NIW-based green card

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

A Prime Opportunity for AI Professionals to Apply for a NIW Green Card

Photo by Cottonbro Studio

Now is an exceptionally favorable time for professionals with backgrounds in artificial intelligence (AI) to apply for a U.S. green card under the EB-2 National Interest Waiver (NIW) category. The convergence of several key factors underscores the urgency and strategic advantage for AI experts to pursue this opportunity.

The Importance of AI Technologies to the U.S.

AI technologies are at the forefront of innovation, driving significant advancements across multiple sectors including healthcare, finance, defense, and transportation. The U.S. recognizes AI as a critical component of its technological leadership and economic competitiveness. AI's capability to solve complex problems, enhance productivity, and foster new industries makes it indispensable. Thus, professionals who specialize in AI are highly valuable, as their expertise directly contributes to the nation's growth and security.

Maturity of AI Technologies

AI has evolved from a nascent field into a mature technology with real-world applications and robust research foundations. The current landscape is marked by sophisticated AI systems that are transforming industries and improving lives. This maturity means that AI professionals bring tangible, impactful skills to the table, making their contributions both immediate and significant. The AI revolution is real.  

Emphasis by the Biden Administration

The Biden Administration has placed a strong emphasis on AI technologies, recognizing their potential to drive innovation and maintain the U.S.'s competitive edge. In October 2023, President Biden issued an executive order focused on ensuring the safe, secure, and trustworthy development of AI technologies. This executive order not only highlights the strategic importance of AI but also signals a commitment to fostering an environment where AI innovation can thrive .

Furthermore, this executive order includes measures designed to attract and retain top global AI talent, making it easier for professionals in the field to navigate the immigration process . This alignment of policy with technological needs underscores the priority given to AI professionals and enhances the appeal of the NIW category.

National Interest Waiver (NIW) Advantage

The NIW category offers a streamlined path to permanent residency for individuals whose work is deemed to be in the national interest of the United States. Given the strategic importance of AI, professionals in this field are well-positioned to argue that their expertise benefits the nation. The NIW allows applicants to bypass the labor certification process, expediting their path to a green card.

Conclusion

With the U.S. government's clear emphasis on AI, the mature state of AI technologies, and the critical importance of these technologies to national interests, AI professionals have a unique and compelling case for applying for a green card through the NIW category. This is a pivotal moment to leverage these favorable conditions and secure a future in the U.S., contributing to one of the most dynamic and impactful fields of our time.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

USCIS Clarifies Schedule A Exceptional ability in Sciences and Art

 

Many foreign workers have heard about the EB-1A “extraordinary ability alien petition” and the EB-2 “national interest waiver” petition. These are two types of employment-based green card applications that an applicant may file by themselves, without sponsorship by a U.S. employer. Additionally, applicants can submit these two types of petitions directly with the USCIS without first obtaining a labor certification from the Department of Labor.

The purpose of the labor certification is to test the American job market to see if there are able, willing, qualified and available American workers for the position. If such workers exist, the employer must first offer the position to them. Under the employment-based categories, there is a sub-category of positions under Schedule A that is also exempt from the labor certification requirement.

Schedule A Group I pre-certifies job openings for physical therapists and nurses, while Group II pre-certifies positions that require exceptional ability in "sciences and art". Foreign workers may submit their immigrant visa petitions with USCIS directly without first obtaining a labor certification. However, they must have a full-time offer of employment by a U.S. employer, and also demonstrate exceptional ability in sciences and art.

USCIS recently clarifies that “science or art” means any field of knowledge or skill which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill. This definition is adapted from existing DOL regulations. With this definition, most professional and skilled occupations would qualify.

To apply under the Schedule A Group II sub-category, the employer must provide notice of the opening to bargaining representatives, or to its employees. To prove exceptional ability, there must be evidence that the employee's achievements have enjoyed “widespread acclaim” and “international recognition”. The employee must provide evidence to satisfy at least 2 of these 7 criteria:

1. Receipt of internationally recognized awards;
2. Membership in international associations that require outstanding achievement;
3. Published material in professional publications about the employee or his work;
4. Participation as a judge, reviewer, or juror of the work of others;
5. Original scientific or scholarly research contributions of major significance in the field;
6. Authorship of published scientific or scholarly articles in international or professional journals; and
7. Display of the beneficiary’s work, in the field, at artistic exhibitions in more than one country.

Further, there must be evidence that the beneficiary’s employment during the past year, and also the position offered in the U.S., must also require exceptional ability.

For workers with exceptional or unusual ability that do not meet the requirements of EB-1A and NIW petitions, Schedule A Group II offers an alternative avenue for them to apply for U.S. green cards without going through the lengthy labor certification process.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Other Alternatives to H-1B Visa

 

The initial H-1B random selection process was completed in late March.  USCIS has not officially released the number of H-1B registrations and selection total.  However, based on unofficial estimates, the number of H-1B applicants continue to be sky-high.  This year, USCIS implemented a new policy which prohibits the entering of multiple registrations for the same employee, which should have improved the chances for selection.  Still, based on statistics gathered so far, the overall selection rate is still undesirable.

For the unselected foreign students and workers, they must now face the harsh reality of their future. This article presents some alternatives that they may consider based on their background and qualifications:

Practical Training Employment

For some foreign students with a STEM degree, continue working with their STEM OPT employment authorization may be the best option. While waiting for the next year's H-1B lottery, they may continue working for their employers.  They must work for an employer who is e-Verified.  Some universities offer internship an co-op employment opportunities.  Enrolled F-1 students may participate in these programs through Curriculum Practical Training (CPT) authorization.

Extraordinary Ability O-1 Work Visa

For individuals with outstanding qualifications or a strong STEM background, the O-1 extraordinary ability visa may be an option. The O-1 visa requires substantial proof of one's qualifications and achievements. O-1 is a temporary work visa approved for up to 3 years each time, and can be extended indefinitely.  Please see our previous article for details of the O-1 visa.

Employer-sponsored Green Card

Rather than relying only on H-1B, one may also consider applying for their green card directly, if their employer is ready to start the application process. There is no requirement that one must be in H-1B status first before applying for their permanent resident status.  For applicants born in countries with available visa numbers, their green cards could be approved relatively quickly.  However, they must maintain their lawful status until they are able to submit their final green card application.

Self-Petitioned Green Card

Without sponsorship by a U.S. employer, a foreign worker may also file a self-petition for their green card if qualified.  For example, they may apply for a green card under the EB-2 visa category with a National Interest Waiver (NIW).  The applicant must prove that their immigration will serve an important interest of the United States.  USCIS has encouraged qualified individuals with a strong STEM background to apply.  Please see our previous article for details of an NIW application. 

EB-1A Extraordinary Ability petition can also be filed by a foreign applicant without employer sponsorship.  It is similar to the O-1 work visa with even more stringent requirements.  One must submit evidence to demonstrate that they have risen to the very top of their field of endeavor. Proof of sustainted national or international acclaim is also required.  Not only scientists or researchers can submit EB-1A petitions, professionals in other fields such as art and design, business, education, health care, engineering, etc., may also qualify.  When in doubt, one should obtain a professional evaluation of their qualifications. 

E-2 Visa

For entrepreneurs who are interested in starting up a small business in the U.S., the E-2 Treaty Investor visa may be the answer.  Their spouses and children may also live, work and study in the U.S. To apply for an E-2 visa, one's country of citizenship (not birth) must have a commerce treaty with the U.S.  Most European and Asian countries are eligible.  Please see our previous article for details. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Further expansion of Premium Processing to Pending EB1C and EB2 NIW Petitions

USCIS recently announced further expansion of the Premium Processing Services, effective immediately. This phase of the expansion covers two types of I-140 petitions:

EB-1c Multinational Executive Manager Petitions:  filed on or before January 1, 2022

EB-2 Petitions filed with a National Interest Waiver: filed on or before February 2, 2022.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Not Selected in the H1B Lottery; A Few Viable Options

We received text messages from USCIS regarding some updates of our H-1B CAP cases.  Excited and hopeful, I logged in to our myUSCIS account only to find some non-selection notices for the pending H-1B registrations. This is not exactly surprising, as we've already predicted that there might not be a second drawing on account of the larger number of selections in the first drawing. Still, we feel the disappointment of not only our clients, but also thousands of other H-1B applicants and employers.  Today, USCIS made the formal announcement that the H-1B CAP for FY 2023 has been reached.  No 2nd or 3rd drawing.  

For the unselected foreign students and workers, they must now face the harsh reality of their future. The following are some alternatives that they may consider based on their background and qualifications:

STEM OPT

For some foreign students with a STEM degree, continue working with their STEM OPT employment authorization may be the best option. While waiting for the next year's H-1B lottery, they may continue working for their employers.

O-1 Visa
For individuals with a strong STEM background, the O-1 extraordinary ability visa may be an option. The O-1 visa requires substantial proof of one's qualifications and achievements. Please see our previous article for details of the O-1 visa.

Green Card through Labor Certification
Rather than relying only on H-1B, one may also consider applying for his green card directly, if there is an employer who is willing to sponsor. There is no requirement that one must be in H-1B status first before applying for their permanent resident status.  For applicants born in under-subscribed countries, their green cards could be approved relatively quickly. 

Green Card with NIW
Without sponsorship by a U.S. employer, a foreign worker may also file a self-petition for her green card with a national interest waiver (NIW).  The applicant must prove that her immigration will serve an important interest of the United States.  USCIS has encouraged qualified individuals with a strong STEM background to apply.  Please see our previous article for details of an NIW application. 

E-2 Visa
For entrepreneurs who are interested in starting up a small business in the U.S., the E-2 Treaty Investor visa may be the answer.  Their spouses and children may also live, work and study in the U.S. To apply for an E-2 visa, one's country of citizenship (not birth) must have a commerce treaty with the U.S.  Most European and Asian countries are eligible.  Please see our previous article for details. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Premium Processing Expanded to Multinational Manager and NIW I-140 Petitions

USCIS announced today the following expansion of premium processing services: 

• Beginning June 1, 2022, USCIS will accept Form I-907 requests for E13 multinational executive and manager petitions received on or before Jan. 1, 2021.
• Beginning July 1, 2022, USCIS will accept Form I-907 requests for E21 NIW petitions received on or before June 1,2021, and E13 multinational executive and manager petitions received on or before March 1, 2021.
• USCIS will reject premium processing requests for these classifications that are filed before their start date of June 1, 2022, or July 1, 2022. USCIS will not accept new (initial) Forms I-140 with a premium processing request at this time.

On May 23, 2022, USCIS will publish a new version of Form I-907, dated 05/31/22.  The new I-907 must be used starting July 1, 2022. With this expansion, all immigrant visa petitions will be eligible for Premium Processing Services. The current additional filing fee for Premium Processing Services is $2500 for Form I-129 and I-140 petitions.  

One frequently-asked question from the public is this:  If I pay the additional fees for Premium Processing services, does it help my case or get it approved faster? Premium Processing Service does not guarantee or increase the chances of approval of a case. It only guarantees that USCIS will make a decision on an application or petition. The decision can be an approval notice, a denial notice, a notice of intent to deny, or a request for evidence, within a fixed processing timeframe. Of course, if your case is approval anyway, use of premium services does enable you to get a faster approval. 

For most I-129 (nonimmigrant employment) and I-140 (employment visa),  the processing timeframe is 15 days.  For E13 multinational manager and E21 NIW petitions mentioned above, the processing timeframe will be 45 days.

It is important to note that only initial filing of an application or petition is eligible for Premium Processing Service.   While a petition or application is pending, parties may also request for Premium Processing Service before a final decision is made on the applicable petition or application.  However, Premium Processing Service is not available on a petition or application that is reopened after an initial decision was made on the petition or application.

The other advantage of using Premium Processing Services is access to a dedicated team of premium services immigration officers.  The petition and applicant may contact these officers about their cases without going through the USCIS Contact Center.  

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Recent National Interest Waiver Decisions

The National Interest Waiver (NIW) exempts the requirement to test the job market for an employment-based application. A grant of waiver means that the foreign applicant's skills and knowledge will provide national benefits to America.  Further, an NIW petitioner may also self-petition for his/her green card without sponsorship by an employer. 

To qualify for NIW, the petitioner must be either advanced degree professionals or individuals with exceptional ability.  In 2016, the Administrative Appeals Office (AAO) revised the legal standard for NIW in Matter of Dhanasar, making it a more viable option for foreign nationals to apply for employment-based permanent resident status.  However, recent AAO decisions demonstrate that petitioners must still meet all requirements in order to obtain a national interest waiver.

The following are some AAO decisions from early 2022 regarding NIW:

Travel Management Specialist:  This petitioner in this case self-petitioned herself for a green card.  The NSC Director denied the case after determining that her profession as a "travel management specialist" is not a profession under the EB-2 visa category. On appeal, AAO remanded the case to NSC to determine if the petitioner qualifies as a person with exceptional ability.  

Linguistic Professional: This case was remanded by AAO to the NSC to determine if the petitioner qualifies for NIW as an advanced degree professional.  Contrary to the case above, the NSC Director here failed to consider whether the petitioner's bachelor's degree and subsequent work experience would qualify the petitioner as an advanced degree professional.  

Mechanical Engineer and Software Programmer:  Petitioner, an advanced degree holder, presented two IT projects with automatic functions and other sophisticated features.  Although the petitioner procured funding for his projects, he failed to prove that his IT projects could bring about national economic or other benefits that would warrant a grant of NIW. 

Cancer Biology Researcher: AAO reversed the TSC Director's denial of NIW for the petitioner.  Medical researchers, especially those who engage in cancer research, are good candidates for NIW petitions. It is unclear why TSC denied her petition initially.

Accountant:  Petitioner's appeal was rejected because she failed to prove that her accounting services would have national benefits beyond her immediate clients and locality.

Postdoctoral Research Associate:  The TSC Director failed to follow the legal framework announced by Dhanasar. Hence, AAO remanded the case to TSC for further review. 

Geology Researcher:   The petitioner's appeal was dismissed because she failed to prove that she was well positioned to advance her area of endeavor, namely, geology research.

Dentist:  Appeal dismissed because petitioner failed to prove national importance of his work.

Marketing Manager: Case was denied because petitioner failed to prove that his marketing and business administration experience in Brazil will provide national benefits to the U.S.

Nurse Supervisor:  Petitioner's profession as a nurse does not qualify as an EB-2 advanced degree professional. 

Information Technology Specialist: Petitioner had past achievements in information technology systems, but failed to demonstrate prospectively how he will provide national benefits to the U.S. in the future.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

Rule to expand premium processing for I-539, I-765, EB-1C and EB-2; set target processing timeframes

A new rule published by DHS today creates a long-term plan to reduce USCIS case backlogs, increase processing timeframes and also expand premium processing services to include I-539, I-765, EB-1C and EB-2 NIW applications.

The new goals of processing timeframes are as follows:

• I-129 premium, I-140 premium:  2 weeks
• I-129 non-premium: 2 months
• I-765, I-131 advance parole, I-539, I-824: 3 months
• N-400, N-600, I-485, I-140 non-premium, I-130, I-290B, I-360, I-102, I-526, I-600, I-600A, I-730, I-800, I-800A, I-90, I-821D renewals:  6 months

These are certainly ambitious goals. Given the current volume of backlogs, it may take some time to achieve these goals.  But, by setting up these goals, both the agency and the public have something to work towards and look forward to. 

Expansion of Premium Processing Services: 

The rule also codifies premium processing fees provided by Congress under the Emergency Stopgap USCIS Stabilization Act (H.R. 8089) including: 

• Form I-140 requesting EB-1C immigrant classification as a multinational executive or manager or EB-2 immigrant classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). Fee: $2,500. Timeframe: 45 days;
• Form I-539 requesting a change of status to F-1, F-2, J-1, J-2, M-1, or M-2 nonimmigrant status or a change of status to or extension of stay in E-1, E2, E-3, H-4, L-2, O-3, P-4, or R-2 nonimmigrant status. Fee: $1,750. Timeframe: 30 days; and
• Form I-765 requesting employment authorization. Fee: $1,500. Timeframe: 30 days.

Without setting up a fixed schedule, USCIS announced a long-term plan to implement premium processing services in phases to additional applications.

USCIS intends to implement expansion of premium processing availability of Forms I-539, I-765 and I-140 "as soon as feasible" in FY 2022.   There are currently no plans to expand premium processing to additional applications. 

Even regarding the aforementioned forms, premium processing is limited to certain type of visa statuses as described above. 

For I-765, certain application categories will be given higher priorities.  For example, DHS expects to begin premium processing EADs for F-1 students applying for Optional Practical Training (OPT) and exchange visitors some time in FY 2022. 

As usual, we must wait for further instructions from USCIS to know the details. Stay tuned!

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

National Interest Waiver Green Card Explained

The Immigration and Nationality Act (INA) of 1990 created the Employment-Based Second Preference Immigrant Visa Category (EB-2).   Further, it provided that a person holding advanced degrees or a person of exceptional ability may obtain a waiver of the job offer requirement if the person's immigration is considered to be in the “national interest.”  This "national interest waiver" (NIW) provision applies only to the second preference (EB-2) classification.  The EB-2 visa classification is reserved for applicants holding advanced degrees or persons of exceptional ability. 

What is NIW? 

In general, when an applicant applies for a U.S. green card based on employment, a valid job offer by a U.S. employer is required.  Further, the employer must also first test the job market (through the labor certification process) to see if there are qualified American workers who are willing to take the position, before offering the job to the foreign worker.  An EB-2 application filed with a request for a national interest waiver means that the applicant is asking the USCIS to waiver both requirements.  It means that the applicant can apply for a U.S. green card by himself/herself without the sponsorship of an employer and also without the need to obtain a labor certification. 

Requirements of NIW

To establish eligibility for a national interest waiver, the applicant (also the petitioner) must prove that he/she qualifies as either a member of the professions holding an advanced degree or as a person of exceptional ability; and also it is in the national interest for USCIS to waive the job offer and the labor certification requirements.  

For individuals applying as persons of exceptional ability, they must show that their presence in the United States would substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future. 

How to establish national interest? 

Simply being a member of the professions holding an advanced degree or a person of exceptional ability does not qualify the petitioner for a national interest waiver. The petitioner seeking a waiver of the job offer and labor certification is in the national interest.  

The term "national interest" has not been defined in the Immigration Act or in the regulations.  In 2016, the Administrative Appeals Office of USCIS handed down a landmark decision - Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) - in which the agency's appeals unit pronounced a new legal framework for adjudicating NIW petitions.  The AAO held that USCIS  may grant a national interest waiver if the petitioner demonstrates: 

(1) that the foreign national’s proposed endeavor has both substantial merit and national importance; 

(2) that he or she is well positioned to advance the proposed endeavor; and 

(3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. 

The petitioner has the legal burden to provide evidence to prove that he/she is eligible for a NIW.  

Advantages for an NIW petition / STEM Applicants

There are many advantages of filing an NIW petition. As mentioned, a petitioner can self-petition a green card for himself or herself without the sponsorship of an employer. This can be very helpful to individuals who do not want to be tied up with a job.  Exemption of the labor certification means faster application process.  Further, a NIW petition can be based in a broad range of disciplines such as business, entrepreneurship, science, technology, culture, health, or education.   USCIS also does not limit the national interest to a specific geographic area, if the underlying subject area can be applied nationally. 

Being aware that the U.S. is behind other countries in STEM education and training, the USCIS has placed more emphasis in NIW applications filed by petitioners in the STEM fields.  For example, USCIS will consider a positive factor possession of an advanced STEM degree, particularly a Ph.D.  Further, if the petitioner is engaged in a critical and emerging technology or other STEM area important to U.S. competitiveness in the world market, it can also serve as positive evidence. 

Although there are many advantages of filing an NIW petition, the burden of proof is quite high and substantial evidence, such as research papers, certificates, business plans, customer contracts, and other technical and business documents are required. Further, the petitioner must clearly articulate not only that his/her proposed endeavor has substantial and national merits, but also why, on balance, it would be beneficial to the US to waive the job offer and labor certification requirements.  Careful planning and meticulous documentation are essential to prepare a strong NIW petition.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)

America Welcomes STEM Talent

Last week, the Biden-⁠Harris Administration announced a number of initiatives to attract and retain STEM talent from foreign countries.  As the global economy is increasingly depending on technology and science, countries are trying to compete for skilled workers in the STEM field in order to stay competitive.   The U.S. has been slacking in retaining foreign talent in terms of its immigration policy, which is complex and often confusingly convoluted.  The Biden-Harris Administration is trying to take actions to change that, and these measures are good starting points. 

Addition of 22 New STEM Fields for OPT Employment

International students in STEM (Science, Technology, Engineering, Mathematics) fields are allowed to have up to 36 months of practical training to work for U.S. employers. 22 new fields such as bioenergy, forestry, cloud computing, climate science, data science, business analytics, etc., have been added to the list of qualified fields for STEM OPT employment. Some multidisciplinary or emerging fields, such as Industrial and Organizational Psychology, and Social Sciences, Research Methodology and Quantitative Methods have also been added. Both undergraduate and graduate STEM academic programs are qualified for OPT employment. This change will attract more STEM students to stay employed in the U.S. rather than returning to their home countries.

 

Expand STEM J-1 Training to 36 Months

The State Department will start an “Early Career STEM Research Initiative,” to facilitate non-immigrant BridgeUSA exchange visitors coming to the United States to engage in STEM research through research, training or educational exchange visitor programs with host organizations, including businesses. Further, academic training for undergraduate and graduate students in STEM fields on the J-1 visa will be extended to up to 36 months.

O-1A Extraordinary Ability Working Visa for STEM Talent

DHS has updated its policy manual regarding the application criteria for the “extraordinary ability” (O-1A) visa program. O-1A nonimmigrant status is available to persons of extraordinary ability in the fields of science, business, education, or athletics. DHS has clarified how STEM talent such as PHD holders may apply for O-1A status and visa based on the technical and complex nature of their studies.

The update also emphasizes the use of "comparable evidence" to establish sustained acclaim and recognition of the applicant. Such use will provide more flexibility for STEM applicants to submit alternative evidentiary proof which is more relevant to their fields of study, if the traditional documentary proof is not available.

 

National Interest Waiver Green Card based on STEM Background

DHS has also updated its policy manual regarding the use of national interest waivers (NIW) for STEM applicants to apply for U.S. permanent resident status (green card). Normally, to apply for U.S. green cards based on employment, a foreign worker must be sponsored by a U.S. employer and must test the job market through the labor certification process.  The use of an NIW allows a foreigner to apply for a green card directly without employer sponsorship and a labor certification. 

The foreigner must prove that he or she has an exceptional ability or an advanced degree holder. Further, the applicant must meet three other criteria: (1) His or her profession must have both substantial merit and national importance; (2) he or she is well positioned to advance the proposed endeavor; and (3) it would be beneficial to the United States to waive the job offer and labor certification requirements.

The new policy explains how the NIW can be used by STEM advanced degree holders and entrepreneurs to apply for green cards. It also explains that the significance of supporting letters from governmental and related entities. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.) 

National Interest Waiver Legal Standard Overhauled And Revised

The legal standard for obtaining a "national interest waiver" in connection with a 2nd Preference Employment-Based (EB-2) immigrant visa petition has been revised and clarified after 18 years.  

On December 27, 2016, the Administrative Appeals Office of USCIS handed down a landmark decision - Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) - in which the agency's appeals unit pronounced a new legal framework for adjudicating NIW petitions: 

"USCIS may grant a national interest waiver if the petitioner demonstrates: 

(1) that the foreign national’s proposed endeavor has both substantial merit and national importance; 

(2) that he or she is well positioned to advance the proposed endeavor; and 

(3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements."

In so doing, the AAO vacated Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), an 18-year-old decision that has been the most important legal authority for NIW petitions.

The new legal standard provides more clarity and flexibility which will prove beneficial to qualified visa applicants.

AAO grants national interest waiver to commodity supplier

The Administrative Appeal Office (AAO) of the U.S. Citizenship and Immigration Services grants a national interest waiver to a commodity trader/supplier, in a non-precedent decision, after concluding that the applicant's immigration will benefit the U.S. to an extent that outweighs the requirement of labor certification.

At issue was an EB-2 petition filed by a commodity trade and supply business on behalf of its manager, who was also the company's founder and sole employee.  The petition requested that the requirement of labor certification be waived in the national interest of the United States.  The case was filed with the Texas Service Center, which denied the petition after issuing a Request for Evidence (RFE) and also a Notice of Intent to Deny (NOID) to the petitioner.  The petitioner filed an appeal with the AAO.

RFE for proof of national scope
The petitioner is a supplier and distributor of swimming pool plastering materials in the U.S.  The RFE issued by the TSC asked for evidence to show that the benefits of beneficiary's services were national in scope, and also for evidence that he was influential in his field.  In response, the petitioner established that it had 100 customers located in nine different States, nine America suppliers located in four different States and more than four international sources of imported materials.  The beneficiary also maintained that he had a customer base of approximately 80 family businesses and about 23 private companies, all of them relying on him for steady supply of goods, competitive prices and custom credit lines. The petitioner also provided numerous letters from business owners who confirmed that the beneficiary had helped them stay in business.

NOID:  Beneficiary stands out in the field?
Subsequently, the TSC director issued a Notice of Intent to Deny (NOID) to petitioner, finding insufficient evidence to show that the beneficiary's accomplishments distinguish him from others in the field.  The director found the letters submitted not sufficient as they were written by beneficiary's business partners or customers. The director wanted to see more independent opinion about the beneficiary's achievements in order to waive the requirement for labor certification.

The beneficiary responded to the NOID by first observing that labor certification was not realistic, given the fact that he was both the owner of the company and the only employee.  The Labor Department would not likely grant certification to self-employed individuals.  The beneficiary also noted that that USCIS has been proactively reaching out to entrepreneurs, citing the Service Entrepreneurs in Residence initiative as an example.  The beneficiary also submitted a new letter from a senior research analyst which explained that (1) The petitioner's success stems from the beneficiary's ability to identify market fluctuations in markets; (2) In commoditized product business, it is the trust and credibility of the supplier organization that differentiates it from its competitors; (3) A business entity's trust and credibility comes from its representatives; (4) Since the beneficiary is the sole representative of the petitioner, and it would be almost impossible to find any other more qualified personnel to do the beneficiary's job of projecting trust and credibility to customers.

The TSC director ultimately denied the NIW application, after having concluded that beneficiary failed to present sufficient evidence to prove that he stands out among his peers.

AAO grants NIW
The AAO reversed the denial and granted NIW to the beneficiary, noting that the beneficiary's contribution to the filed is through his "transaction of business" rather than product development.  The AAO noted that the beneficiary had helped many small businesses, individually and cumulatively, stay in business. These achievements go above and beyond customer satisfaction and leave a legacy far beyond the beneficiary's own business ventures.  Consequently, the AAO concluded that beneficiary's services outweigh the national interests of labor certification.

There are several points that are worth noting here. First, the beneficiary in this case was a business professional.  It demonstrates that NIW is not just reserved for scientists, researchers or medical professionals.  Secondly, independent experts letters are usually given more evidentiary weight than letters written by colleagues or employers.  Thirdly, small companies (such as the petitioner here) with one or two employees may also file an employment-based petition, although it would be difficult to prove the case.

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.)