News

Published 5.3.2018

U.S. immigration law allows many foreign nationals to apply for permanent residence and obtain a green card through employment. There are five employment-based (EB) preference categories provided by law. This article discusses the National Interest Waiver (NIW), a subset of the second preference category (EB-2).

Who Qualifies for the EB-2 Classification?
Generally, to be eligible for EB-2 classification, applicants must show that they have a permanent job offer that requires a Master’s or a Ph.D. In addition, the individual must show that s/he possesses the required Master’s or Ph.D. If the applicant does not have a Master’s or Ph.D., the EB-2 classification can still be met with only a U.S. baccalaureate or equivalent foreign degree and five years of progressive post-baccalaureate experience in the specialty.

Another way to qualify for the EB-2 classification is through “exceptional ability” in the sciences, arts or business (not to be confused with “extraordinary ability” that is required for the EB-1 classification). Under the exceptional ability option, applicants must show that they have a degree of expertise that is significantly higher than that ordinarily encountered in the field. The applicants must show at least three of the following elements: a degree or diploma in the relevant field; at least 10 years of full-time experience in the field; license to practice the profession; evidence of a high salary commensurate with the claimed ability; membership in professional associations; recognition for achievements and significant contributions to the field; or other comparable evidence.

What is the Application Process for EB-2?
Usually, the applicant must have a permanent job offer from an employer willing and able to sponsor for permanent residence. In a standard EB-2 process, the employer is responsible for the first two of the three steps in the application process.

First, the employer must get a prevailing wage determination from the U.S. Department of Labor (DOL), make the job available to U.S. workers and attempt to recruit from U.S. applicants through specific recruitment steps. If it does not receive any job applications from U.S. candidates who meet the minimum qualifications for the job, then the employer can submit a Permanent Labor Certification application to the DOL. By virtue of this application, DOL certifies to the U.S. Citizenship and Immigration Services (USCIS) that there are not sufficient U.S. workers qualified and available to accept the job opportunity and that allowing the employer to hire the foreign worker will not adversely affect the wages and working conditions of similarly situated U.S. employees.

Second, the employer must file an I-140 Immigrant Petition for Alien Worker with USCIS to classify the prospective immigrant as the beneficiary of the EB-2 classification. During this step, the employer must demonstrate to USCIS that the job continues to be available and that the foreign national meets the job qualifications.

The third and last step is the only one controlled by the employee in a conventional EB-2 case, wherein the immigrant must now apply for permanent residence based on the pre-approved I-140 petition filed by the employer. In some cases, the second and third steps can be filed concurrently, at the same time.

What Is the National Interest Waiver?
The National Interest Waiver (NIW) is a means by which the employee can take control of the entire EB-2 process and also bypass the first step. The immigrant must still prove that s/he has a Master’s or Ph.D. or is an individual of exceptional ability. But through the NIW process, the DOL step for the labor certification and trying to recruit from U.S. workers is not required. That is exactly what the term “waiver” is for: it waives the requirement for a job offer and labor certification process.

In addition, an immigrant eligible for NIW can self-file the I-140 Petition with USCIS, without the need for the employer to file it. Therefore, instead of a three-step process where two steps belong to the employer, the NIW provides a two-step process, with both steps within the control of the immigrant employee. As is the case in non-NIW cases, some applicants can submit the I-140 Petition and the same time as the I-485 Application to Adjust Status, if they meet all requirements.

Who Qualifies for NIW?
USCIS may grant a waiver of the job offer and labor certification requirement if the applicant shows that approving such a waiver is in the national interest of the United States. USCIS recently adopted a new standard for NIW cases, based on the December 2016 case known as Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Prior to that, USCIS used to decide NIW cases according to the Acting Associate Commissioner decision in Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Comm. 1998). However, in December 2016, the Administrative Appeals Office (AAO) vacated the NYSDOT decision and created a new NIW standard under Matter of Dhanasar. USCIS began applying Dhanasar in 2017.

Under Matter of Dhanasar, an applicant must prove the following:

the proposed endeavor has both substantial merit and national importance;
the immigrant is well positioned to advance the endeavor; and
on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

Each element is analyzed on a case-by-case basis. There is no one-size-fits-all type of facts in NIW cases.

The first element, whether the endeavor has substantial merit and national importance, can be satisfied in several fields of work. While the NIW is most commonly encountered in scientific research cases, the applicant’s endeavor can also be business, entrepreneurialism, technology, culture, health or education, among others. Prior to Dhanasar, USCIS used to analyze the national importance factor based on the geographical ramification of the endeavor. Dhanasar changed that analysis and nationwide impact of the endeavor is no longer required. However, the applicant must still show that the endeavor has a wide enough impact to be considered of national importance. Benefits that are limited strictly to the applicant or the applicant’s employer are not sufficient.

The second element, the applicant’s ability to advance the proposed endeavor, takes into consideration the applicant’s education, skills, knowledge and record of success in the field being advanced, a model or plan for future activities, and any progress toward achieving the proposed endeavor. In addition, USCIS considers the interest that third parties have in the applicant’s endeavor, whether it is customers, users, investors, commercial institutions or others.

The third element takes into consideration the nature of the applicant’s qualifications or nature of the proposed endeavor, whether it would be impractical to obtain the labor certification needed in conventional EB-2 cases or, regardless of whether other U.S. workers are available, waiving the labor certification requirement would still benefit the U.S.

The AAO gave the following examples of impractical labor certification scenarios: a case where a labor certification would prevent a petitioning employer from hiring a foreign national with unique skills or knowledge that are not easily articulated in a labor certification application; or a case where a self-employed inventor or entrepreneur would find it impractical to secure a job offer while advancing his or her own invention or business, without losing the proprietary rights to the invention or business. These examples are not exclusive, and the overall balance in the third element is to be considered on a case-by-case basis.

Blending the Law and the Science
NIW requests can be highly technical, as they need to fully explain the nature and impact of the applicant’s work. However, the USCIS officers deciding your case often have no science background. Too often these cases are denied because USCIS simply does not understand the significance of your work and accomplishments. Attorney Raluca (Luca) Vais-Ottosen’s science undergraduate background gives her the unique ability to combine technical language and “legalese” and translate that to plain English without losing the integrity of the scientific work, which can make the application easier for USCIS to understand.

At DeWitt, we analyze your case, your education and employment history as well as your proposed endeavor, to first assess your eligibility. We then guide you through the letters of support and we prepare a strong legal and, where applicable, scientific argument in support of your petition. If you would like to explore your eligibility for EB-2 classification with or without a national interest waiver, or if you have any other immigration-related questions, contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or (608) 252-9291, or contact your existing DeWitt attorney.