National Interest Waiver

NATIONAL INTERESEST WAIVER

The Immigration Act of 1990 (1990 Act) made it significantly easier for certain aliens to obtain permanent resident status (PR) based on their abilities. 1990 Act also creates a second preference (EB-2) immigrant visa category for aliens with advanced degrees or who have exceptional ability in the sciences, arts or business. Upon a showing that a waiver of a job offer is in the "national interest," an alien who otherwise qualifies for this classification can obtain PR without a labor certification and without a job offer.

NATIONAL INTEREST TEST

In the national interest, which means that the advanced degree professionals and aliens who, because of their exceptional ability, will substantially benefit prospectively the national economy, cultural or educational interest, or welfare of the country, more specifically, will substantially

Improving the U.S. economy;
Improving wages and working conditions of U.S. workers, create employment opportunitie;
Improving education and training programs;
Improving health care;
providing more affordable housing for young or older, poorer U.S. residents;
Improving the environment of the U.S. and making more productive use of natural resources;
Improving cultural awareness and diversity through artistic endeavors;
Having significant scientific contributions;
Involving a request from an interested U.S. government agency;

DOCUMENTATION THE NATIONAL INTEREST

Curriculum Vitae, which may include in: education, career related experience, publications, participation in professional meetings and presentations, professional affiliations, achievements and awards, etc.
Recommendation letters from experts in the field, renowned professors, scholars, employers or colleagues, high-level corporate executives or government officials. Letters should explain the alien's work, goal and significance of the alien's research besides acclaim the alien's accomplishments and praise the alien's exceptional ability.
Diplomas, membership certificates, awards, etc.
Publications, presentations, etc.
Citations to your publications, request for reprints.
Published materials about the alien's accomplishments or about the significance of the alien's work.
Sponsorship of the alien's research.

The evidence should establish the significance of the projects in which you are engaged and the significance of your participation in the projects, and that your participation in the projects have a greater impact than others in the field.

Matter of New York State Department of Transportation:

The famous Matter of New York State Department of Transportation is the precedent case that started panic among immigration attorneys and those who plan to apply for green card through national interest waiver. Whether there are new, higher standards came with this precedent case, the INS is certainly starting to wear a new glasses when looking at this type of petitions. Pursuant to Matter of New York State Department of Transportation, you must provide evidences on the following aspects:

1. Evidence that the benefits of your proposed employment will be national in scope; and

2. Evidence that you seek employment in an area of substantial intrinsic merit; and

3. Evidence that your ability is "exceptional", which is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business;" and

4. You must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required, which means that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making available to U.S. workers (having the minimum qualifications) the position you seek;

5. You must establish that you are not seeking a national interest waiver based on a shortage of qualified workers in a given field, regardless of the nature of the occupation. The national interest waiver is not warranted solely for the purpose of ameliorating a local labor shortage; and

6. If you hold a patent or are responsible for an innovation, then you must demonstrate that the specific innovation serves the national interest; and

7. You must establish that you have a past record of specific prior achievement which justifies projections of future benefits to the national interest. You must establish, in some capacity, your ability to serve the national interest to a substantially greater extent than the majority of your colleagues. You must demonstrate to some degree your influence on your field of employment as a whole.

We have been specialized in filing national interest waiver petitions for our clients for the past three years. We don’t think the above requirements are new to the NIW petitions. Only they were not outlined so explicitly by the INS before. However, this case did spell a tightened scrutiny of the NIW petitions by the INS. Therefore, it will increase the chance of getting approval of a NIW petition if we use the above rules as guidelines in preparing our petitions.

For the majority applicants, it is not a difficult job to establish that his or her work is of apparent interest to the United States, and the benefits will be national in scope, if not world wide. However, the INS has made it very clear that NIW should be based on the merits of the individual alien rather than the overall importance of a given profession. Merely engaged in a profession that is of national interest does not warrant the granting of NIW.

What we need is the letter which not only CLAIM but also EXPLAIN that you have a degree of expertise significantly above that ordinarily encountered in your field AND because of that, you will serve the national interest to a substantially greater extent than the majority of your colleagues. AND that the national interest would be adversely affected if the petition not granted and you were not retained in the United States to continue your important research.

The way to EXPLAIN is normally by stating that you have established a past record of achievements which justifies projections of future benefit to the national interest. High grades from school and work experience are not so important compared to the contributions of a major kind. The recommendation letters should put much of their emphasis on explaining your contributions - the significance of what you have achieved and its impact on your field, because we have got a list of all your publications and patents from your CV.

If you want to get green card fast and consider yourself qualify under the above classification, feel free to contact Tricia Wang, Attorney-at-Law by phone 510-791-0232 or fax 510-791-5609 or send email to tricia@wangslaw.com