The National Interest Waiver is a process that can eventually lead to a grant of Lawful Permanent Resident Status (“Green Card”) in the U.S. if approved by the United States Citizenship and Immigration Services (USCIS). The process consists of filing an “Immigrant Petition for Alien Worker”, requesting the USCIS to grant the foreign national an Immigrant Visa based on a National Interest Waiver, along with the filing of an “Application to Adjust Status to that of a Lawful Permanent Resident”, commonly referred to as a Green Card application.

The National Interest Waiver Immigrant Visa Petition permits a qualified foreign national to petition without filing for a Labor Certification from the Department of Labor and without a specific job offer already available the U.S. However, while a petitioning employer is not required, it is often beneficial. This type of Immigrant Visa may only be solicited by a foreign national who qualifies for the Second Employment-Based Immigrant Category ("EB-2"). Therefore, the foreign national must possess an "Advanced Degree" (or equivalent), or be a person of "Exceptional Ability".

  • An "advanced degree" means a degree above a Bachelor's Degree.

  • A Bachelor's Degree combined with at least five years of progressively responsible

    experience may be deemed the equivalent of an advanced degree.

  • An applicant seeking EB-2 classification without an advanced degree must establish

    "exceptional ability", which requires, among other things, at least ten years of experience in the field.

 

A National Interest Waiver Immigrant Visa Petition is only successful where a foreign national can convince the USCIS that his or her work is and will be in the national interest. The term "national interest" is an amorphous standard that is not specifically defined in either the law or the regulations. However, in cases involving this issue, the USCIS has held that the national interest may be found where the foreign national’s employment will be in an area of “substantial intrinsic merit.” Specifically, cases have recognized the following areas:

  • improving the U.S. economy;

  • improving health care;

  • improving and/or enhancing national security and/or national defense

  • improving the wages and working conditions of U.S. workers;

  • improving education and training programs for U.S. children and underqualified U.S.

    workers;

  • providing more affordable housing for young, old or poor U.S. residents; or

  • improving the U.S. environment and making more productive use of natural

    resources.

 

A national interest waiver can also be based on, or significantly supplemented by, a request from a U.S. government agency that is interested in the beneficiary's continued work in the U.S.

After determining that a foreign national is working in an area that could potentially benefit the U.S. national interest, he or she must provide evidence establishing several other requirements. These requirements were created as proposed regulations, which have still not been formally adopted. However, experience and previous decisions indicate that the USCIS expects National Interest Waiver petitions to satisfy the following criteria:

  • that the foreign national has at least two years experience in the field of expertise;

  • that the petition is based on more than just a shortage of workers in a specific field

    and/or the alleviation of a local labor market shortage;

  • that the foreign national will provide a substantial prospective benefit to the U.S.,

    which is truly national in scope; and

  • that the foreign national will play a significant role in the activity that will benefit the

    U.S., documented by a record of past accomplishments with some degree of influence on the field as a whole, from which it can be concluded that he or she will serve the national interest to a greater extent than other persons with the same level of education, training, and/or experience.

 

In order to demonstrate that the foreign national fulfills the USCIS requirements, it is necessary to provide significant documentation not only of the foreign national’s abilities, but most importantly, evidence that demonstrates that he or she will benefit the U.S. national interest in the future. The following are representative of the kinds of documentation that might support such a petition:

  • Letters of support from previous employers, colleagues, and others having personal knowledge of the foreign national's abilities and his or her actual or potential contributions to the national interest. These letters should be written by people of prominence in the foreign national’s field of work. (We can provide guidelines to assist in the writing of such letters.)

  • Evidence of the receipt of prizes or awards for excellence in the field.

  • Evidence of membership in professional associations that require outstanding

    achievement for membership.

  • Published material about the applicant or his or her work.

  • Published articles or other work authored by the foreign national in national or

    international journals or publications.

  • Articles or other background evidence, which supports the contention that the foreign

    national’s area of work directly and significantly affects the U.S. in one or more of the areas listed above.

 

All of the evidence will be explained in a Main Supporting Letter which can be signed by the foreign national’s supervisor, a prominent person in the field, or by the foreign national him or herself. We will also assist the foreign national in obtaining the necessary documentation to file the Application to Adjust Status (Green Card application).

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