National Interest Waiver FAQs20 Mar 2012
Question 1. I want to file a petition for National Interest Waiver based on an acute shortage of people with my particular professional skills in the United States. Is this possible?
The USCIS has strict guidelines regarding who qualifies for an NIW. These guidelines state clearly that a shortage is not sufficient reason for an NIW and, in a shortage situation, it recommends using the usual employment-based (PERM labor) sponsorship process.
Question 2. Can a person who holds a master’s degree in computer science from a U.S. university, has experience, and who is working for a state government organization apply for a National Interest Waiver?
It is possible for a person with a masters degree, who is working for a state government, to apply for a national interest waiver. Whether or not the NIW case will be approved by the USCIS ultimately will depend upon convincing the USCIS that the person is truly superior to others who are in that field, that the work will benefit the United States as a whole, and that the work is in the national interest. Much depends upon the individual’s particular achievements and contributions. No matter how talented one is, if s/he has worked only on assigned projects, s/he will not have a strong case. One needs to be an innovator, who has advanced the science of the field as a whole and influenced others.
To see if you may qualify, you may call the Murthy Law Firm at 410.356.5440 for an initial consultation, at no further obligation.
Question 3. Is it possible for one to file for a green card under National Interest Waiver, Extraordinary Ability, and Labor Certification at the same time?
It is certainly possible for a person to file multiple petitions in different categories for the green card at the same time. Some people potentially qualify under more than one category. Our firm has processed cases for which we have filed a National Interest Waiver, Extraordinary Ability, and regular Labor Certification for the same person.
Question 4. What are the requirements for the EB1 Outstanding Researcher / Professor category?
Generally, we would need to demonstrate that the professor or researcher is recognized internationally in a specific academic area through specific types of documentation. The individual must have at least three years’ experience in teaching and/or research in the academic area.
Such individuals must be sponsored either (1) for a tenured or tenure-track position within a university / institution of higher education, or (2) in a comparable university / academic research position, or (3) in a private company in a comparable position. Private employer sponsors must have documented research results and employ at least three full-time researchers.
Question 5.I heard that the USCIS has become extremely stringent in EB1 Extraordinary Ability petitions. What is the adjudication standard in this EB1 category?
In the category, if the applicant does not have a one-time achievement such as the Nobel Prize or other equally prestigious achievement, then documentation of a minimum of three out of the list of ten criteria are required. The list includes, but is not limited to, documentation of receipt of lesser nationally or internationally recognized prizes or awards, evidence of judging experience, publications, original contributions to the field, etc.
The submission of evidence supporting the applicant’s fulfillment of three of the ten categories may not be sufficient to result in an approval. It establishes the initial evidence, but such threshold evidence may fall short of proving extraordinary ability and the USCIS may require additional evidence. This constitutes what is called a two-step adjudication process as outlined by the USCIS ina 2010 memo based on a 9th Circuit Court of Appeals decision in Kazarian v. USCIS. The USCIS has stated that the adjudicator would consider the initial evidence as a first step in the adjudication process to determine if the applicant meets the minimum requirements (i.e. meets at least three eligibility criteria). During a second step, the adjudicator would consider all the evidence in the cumulative to determine if it places the applicant at the top of his/her field of endeavor.
Question 6. I am a physician and came to U.S. on a J-1. I started work on H1B under the Conrad State 30 program. Should I apply for a National Interest Waiver or do a Labor Certification case instead?
Assuming that the NIW referred to is the special type for physicians providing services in underserved areas, you will be required to commit to provide those services for five years in the underserved area. If you choose to pursue a Labor Certification, you may have more flexibility with regard to future options. However, many physicians who have initially committed to work for three years in an underserved area as part of a J-1 waiver do decide to use the NIW as an avenue to obtain a green card. We suggest a consultation with an experienced U.S. immigration attorney to discuss the options and determine which would be more helpful in meeting your goals.
Question 7. Can one apply for a National Interest Waiver while his/her labor application is pending with the U.S. Department of Labor? If the NIW (I-140) is denied by USCIS, will the individual still be able to complete the labor certification process and apply for I-140 again?
It is possible for one to file a National Interest Waiver or any other green card petition while the labor certification is pending with the Department of Labor. Even if the I-140 is denied in the NIW case, the person will still be able to complete the labor certification process and apply for the I-140 based upon approval of the Labor Certification application.
Question 8. If I file for the National Interest Waiver (NIW), Extraordinary Ability (EA), or Outstanding Professor or Researcher (OPR) category, may I use concurrent filing to file my I-485?
It is permissible to file any I-140 and I-485 concurrently so long as the priority date is current for the individual’s classification and country of chargeability. In the case of NIW, EA and OPR cases, the priority date is established by the date the I-140 petition is filed. Generally the EA and OPR cases are current for all individuals as they fall into the EB1 category. However, NIW cases fall into the EB2 category and may not be current. Even if the priority date is current, some people choose not to file an EA, NIW, or OPR concurrently with the I-485 since these categories are highly discretionary, and a denial of the I-140 will result in an automatic denial of the I-485. We suggest a consultation with an experienced U.S. immigration attorney to discuss the options and determine which would be more helpful in meeting your goals.
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