National Interest Waivers (Part 1 of 2)13 Apr 2007
[See also, Part 2 of this NewsBrief.]
The NIW category falls within the employment-based, second preference category (EB2). In contrast to regular EB2 petitions, however, NIW cases are exempt from the labor certification and job offer requirement. This means that a person who does not have a tenure-track or permanent job offer could potentially qualify and file a self-sponsored NIW petition, if otherwise eligible. Information on NIWs is available on MurthyDotCom in our National Interest Waivers section. At the Murthy Law Firm, we have routinely filed NIW applications for selected clients with considerable success. Since we receive many inquiries about applying for “green cards” through the NIW category, this article will provide guidance and information with regard to this category desirable to those who have the required credentials and few other options. Part 2 of this article will carry some recent success stories of NIW approvals our clients have obtained. These may serve to help as you plan your immigration law future in the United States.
Overview of NIW Requirements
In order to qualify under NIW, the following three requirements must be met. First, the applicant must be seeking employment in an area of substantial intrinsic merit. Second, the proposed benefit of the employment should be national in scope. And third, the applicant must show that the national interest would be adversely affected if a labor certification were required.
1) Substantial Intrinsic Merit Requirement As stated above, the first NIW requirement is that the proposed employment be in the area of substantial intrinsic merit. Eligibility may be shown by documenting that the particular field of endeavor is related to an important national goal. Many professional fields do relate to some important national goal, such as health, education, and the economy. The work must extend beyond the purely theoretical, however.
2) Proposed Benefit is National in Scope The second criterion of NIW eligibility is that the proposed benefit be national in scope. It is worth mentioning that a correlation between national goal and the proposed activity need not be direct. For example, an engineer who works on his/her state’s road and bridge infrastructure would be able to show that the activity will benefit the entire nation, as roads and bridges connect different states, aiding interstate commerce and impacting the country in numerous other ways.
3) NIW Must Outweigh the U.S. Interest under the Labor Certification Process The last of the three requirements established by the precedent decision in Matter of N.Y. State Department of Transportation (NYDOT) in 1998, is by far the most difficult to meet. To show eligibility under this requirement, a petitioner must prove that the work presents a national benefit so great as to outweigh the national interest inherent in his/her labor certification process, or that s/he will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Since the U.S. interest in protecting the labor market is a strong national interest, this last requirement also establishes a high standard for this particular category.
To exhibit eligibility, the petitioner’s record of achievements must show “some degree of influence on the field as a whole.” In addition, the petitioner must possess unique knowledge, abilities, or experience that sets him/her apart from others in the field. S/He must play a critical role in cutting-edge projects in the specific discipline. It is neither enough to simply be highly skilled in a particular area, nor to have a skill that is in great demand. Such situations are more appropriate for the labor certification process.
Defining “National Interest”
The case law has found that seven factors should be considered to determine whether a particular occupation is in the national interest. These factors are: improving the U.S. economy; improving wages / working conditions; improving education and programs for children and/or under qualified workers; improving health care; providing more affordable housing; improving the environment; and/or an interested government agency request.
EB2 Visa Backlog Applies for NIW Cases
The NIW, as mentioned above, is within the EB2 preference category and is subject to the same backlogs as other EB2 labor certification cases, even though they may enjoy the benefit of not having to get a labor certification or require employer sponsorship. Nationals from India and China, who are applying in the EB2 preference category, are currently subject to a substantial backlog in visa number availability, sometimes referred to as the priority date retrogression.
As of this writing, the backlog in visa numbers for Indian nationals is measured in years. People from China are also subject to a visa backlog, but the wait time for these individuals is presently shorter. Readers unfamiliar with the topic of visa numbers and retrogression should refer to MurthyDotCom, where updated information on visa numbers is provided each month, and the current Department of State Visa Bulletin chart is always available. In short, the lack of visa numbers is due to U.S. limits on the numbers of individuals who can immigrate permanently to the United States each year. This is controlled by the issuance of constrained immigrant visa numbers and compounded by per-country limits.
To reach the second and final stage of the green card process, which is either an adjustment of status or a consular processing for an immigrant visa, there must be a visa number available in the particular category and for the country of chargeability. The first stage in an NIW case is the filing of the I-140 Petition with the USCIS.
Maintaining Status While Waiting for Visa Number
Individuals from India and China who are eligible for and obtain the NIW approval will need to maintain a separate immigration status at least until the priority date becomes current and a visa number is available to them. The filing of Form I-140 alone, even if and when it is approved, does not protect nationals of India and China from “falling out of status.” One needs to maintain a separate nonimmigrant status until s/he is permitted to apply for adjustment of status when the visa numbers become current. By far, the most common way to achieve this is to maintain an H1B, L-1, O-1, or other relevant nonimmigrant status.
We have had many successful NIW cases at the Murthy Law Firm. Individuals considering this category may find it helpful to review the approvals. A sampling of abstracts and reports of other successful and difficult cases can be found in our NIW section, referenced above. Watch for Part 2 of this article, where we will share some of our more recent approvals with MurthyDotCom and MurthyBulletin readers.