National Interest Waiver
I. What is
National Interest Waiver?
Usually, in applying permanent
residence ("Green Card"), one needs a job offer from an employer and
an approved Labor Certification application before filing permanent resident
application. However, The Immigration Act of 1990 created a NEW CATEGORY
OF THE "NATIONAL INTEREST WAIVER" for employment-based immigration
for members of the professionals holding advanced degrees (masters and higher,
or bachelors plus at least 5 years of employment experience, involving
incremental responsibility in the profession) and individuals of Exceptional
Ability of the arts, sciences, or business. Applicants usually are required to
show to the Immigration and Naturalization Service that he or she at least
meets three out of following six requirements:
1.
An official
academic record showing that the alien has a degree, diploma, certificate, or
similar award from a college, university , school, or other institution of
learning relating to the area of exceptional ability;
2.
Evidence in
the form of letter(s) from current or former employer(s) showing that the alien
has at least ten years of full-time experience in the occupation for which he
or she is being sought;
3.
A license
to practice the profession or certification for a particular profession or
occupation;
4.
Evidence
that the alien has commanded a salary, or other remuneration for services,
which demonstrates exceptional ability;
5.
Evidence of
membership in professional associations; or
6.
Evidence of
recognition for achievements and significant contributions to the industry or
field by peers, governmental entities, or professional or business
organizations.
There is also a catch-all
provision under this section that if the applicant believes with sufficient
evidence that above-mentioned standards do not apply to his or her occupation,
then the applicant may submit comparable evidence to establish eligibility. To
convince the INS to accept such evidence, one needs to show his or her unique
background/qualifications/achievements that the usual standards would not be
entirely appropriate for the particular applicant.
National Interest Waiver-based
permanent residence application is in the category of Second Employment-Based
Preference and this preference usually requires a job offer. However, the
national interest waiver applicant needs to show to the INS that a waiver of
such requirement would be indeed in the interest of the United States and
therefore, such application shall not subject to the usual labor certification requirement.
II. Matter of
New York State Department of Transportation
The Office of
Administrative Appeals, in the NYSDOT decision, established a three-prong test
to determine whether a waiver of job offer is in the national interest. After
NYSDOT, to meet the national interest threshold, a petitioner/alien must
establish that:
1.
He/she
seeks employment in an area of substantial intrinsic merit;
2.
The
proposed benefit will be national in scope; and
3. The national interest would be adversely
affected if a labor certification were required for the alien. The petitioner
must demonstrate that it would be contrary to the national interest to
potentially deprive the prospective employer of the services of the alien by
first making the position available to U.S. workers.
III. Factors to
Be Considered for Granting National Interest Waiver
1.
Improving
the U.S. economy;
2.
Improving
wages and working conditions of U.S. workers;
3.
Improving
education and training programs for U.S. children and under-qualified workers;
4.
Improving
health care;
5.
Providing
more affordable housing for young and/or older, poorer U.S. residents;
6.
Improving
the environment of the United States and making more productive use of natural
resources;
7.
Improving
international cultural understanding; and/or
8.
A request
from an interested U.S. government agency.
The processing time of I-140
petition of National Interest Waiver varies on different cases. Some only takes
3 months, while some takes approximately 8-12 months. Once the I-140 petition
is approved, the National Interest Waiver can apply for Green Card through Visa
Processing at U.S. Consulate or Adjustment of States at an INS office. However,
because of the increasing backlog in second preference category, one now must
wait for several years to file adjustment of status application.
IV. The
Advantages of Applying National Interest Waiver
1.
It is not
necessary for the Applicant to have a job offer or show that employment will be
in a permanent position.
2.
Unlike the
majority of employment-based immigrants, the individual eligible for a National
Interest Waiver does not need to obtain Labor Certification from the Department
of Labor.
3.
No
Employment Contract is required.
4.
If an
individual makes an application while employed with a company, the application
is not effectively canceled by the termination of the Applicant's employment
and/or his or her acceptance of a new position.
5.
An
individual who is applying for a National Interest Waiver does not have to be
concerned about the amount of his salary.
6.
An
individual who is applying for an National Interest Waiver application does not
have to have an advanced degree when he or she can show "exceptional
ability".
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