NATIONAL INTEREST WAIVER
What is it?
Section 203(b)(2)(A) of the Immigration and Nationality Act (INA) includes members of the professions holding advanced degrees and aliens of exceptional ability in the arts, sciences or business. Popularly referred to as EB-2, this category normally requires a permanent job offer and an approved Labor Certification.
The Immigration Act of 1990 (IMMACT90) created a means of avoiding these requirements by including a provision for a “national interest” waiver of the requirement of a job offer and a Labor Certification. The Act states that “the Attorney General may, when (s)he deems it to be in the national interest, waive the requirement...that an alien’s services in the sciences, arts or business be sought by an employer in the United States.” The National Interest Waiver (NIW) applies to both subcategories of EB-2, members of the professions holding advanced degrees and aliens of exceptional ability.
Since most college and university researchers and teachers have at least a Master’s degree, the waiver provision can be extremely beneficial to the academic community. The U.S. Citizenship and Immigration Services (USCIS) also recognizes that a Bachelor’s degree plus five years of progressive work experience in the area of specialty is equivalent to an advanced degree. However, if the position requires a Doctorate, the individual must have a U.S. or foreign equivalent Doctorate.
Why use it?
The University of Wisconsin-Madison policies are very specific regarding the types of position that qualify for University sponsorship. See: the Permanent Residence menu at our webssite. Because of these policies, many employees who might otherwise qualify for an employment-based immigrant application are not eligible for an application to be filed by the University. In addition, Wisconsin state law prohibits the use of outside attorneys to represent the interests of state government agencies. Therefore, employees may not hire an attorney to process any application that requires a job offer because in those cases, the employer is the petitioner, not the employee. The only types of PR petition that outside attorneys can file on behalf of UW-Madison employees are the NIW and Aliens of Extraordinary Ability. Therefore, the employee is free to hire an attorney to process the NIW application without violating Wisconsin state law.
Furthermore, since no job offer is required, no Labor Certification is necessary. This can save considerable time, as well as the cost of advertising and the work of screening applicants and preparing the petition. Except in very limited circumstances, UW-Madison only files Labor Certifications on behalf of teaching faculty.
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No job offer requirement also means that the job does not need to be “permanent.” Many research positions are funded entirely by “soft money” from grants that may or may not be renewed. This often can be a problem when applying for permanent residence, as the existence of the position is dependent upon the grant being renewed, so there is no way to guarantee its permanence. The NIW makes such assurances of permanence unnecessary.
Since the petition can be filed by the individual applicant, the petition is fully transferable. The applicant can change employers at any time during the process without having to start the whole process all over again. Since the original priority date is maintained, this is especially beneficial for people from countries that frequently become oversubscribed, resulting in a backlog of visa number availability.
Finally, there is no salary requirement. Since many research positions are funded by Federal grants which set strict limits on the salaries that can be paid from the grant, university employees benefit from the waiver. While the work must be of national significance, it can be performed by someone who would not necessarily qualify as a higher paid EB-1 Outstanding Professor/Researcher or Alien of Extraordinary Ability.
Who qualifies?
First of all, the applicant must qualify for the EB-2 category as either an alien of exceptional ability in the arts, sciences or business (see 8 Code of Federal Regulations Section 204.5(k)(2) for details), or as a professional holding an advanced degree who provides services in the sciences, arts, professions or business. USCIS has deliberately kept the standards flexible, stating that the work must be scientifically or socially significant and must meet a standard well above that of prospective national benefit. In 1992, the Administrative Appeals Unit (AAU) enumerated seven factors that can be used as a basis for granting the NIW. The AAU stressed, though, that these factors are intended as guidance, not as literal requirements. The factors are:
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 U.S. and making more productive use of natural resources; or
7. a request from an interested U.S. government agency.
While these factors were applied to a business case, they are also applicable to academic positions. Although they are not exhaustive, it is always wise to try to link a case to the factors. If there is a good fit with the standards, be sure to emphasize it. Since most academic research is supported by grants from the U.S. government, it is particularly beneficial to get a government agency letter in addition to linking the application to one or more of the other factors.
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USCIS published proposed regulations in June of 1995 which establish four specific criteria for obtaining the NIW. Although final regulations have not been published, it is advisable to follow the guidelines as closely as possible. The criteria are:
1. the applicant must have at least two years of experience in an area that will benefit the U.S. USCIS has indicated that this category is not appropriate for graduate students, even if the research is “cutting edge”;
2. the applicant’s request for a waiver of the labor certification requirement is not based purely on a local labor shortage and the benefit of employment is national in scope;
3. the applicant will engage in an undertaking that will substantially benefit prospectively the U.S.; and
4. the applicant will play a significant role in such an undertaking. The fact that the applicant works in a field of high national interest is not enough; the person must be a critical member of the team and the team would be greatly impaired by this person’s absence.
Employment of the Applicant Must Outweigh the National Benefit of the Labor Certification Process
A decision reached by the Administrative Appeals Unit of the U.S. Citizenship and Immigration Services on 7 August 1998 has made the National Interest Waiver more difficult to obtain. In addition to the above criteria, applicants must provide USCIS with objective evidence that the national benefit of the applicant’s employment outweighs the national benefit inherent in the labor certification process. In other words, a convincing argument must be made that testing the job market through the labor certification process would not be in the national interest.
Application Procedure
Either the employer or the applicant may apply on form I-140. However, in the case of UW-Madison employees, it MUST be the employee who applies. In addition to the I-140, two original ETA-9089 forms must be submitted.
In addition to the forms, supporting documentation must also be submitted both to show that the beneficiary qualifies for EB-2 classification as either an advanced degree holder or an alien of exceptional ability, and that the above standards are met. As with any application for permanent residence, attach a copy of the applicant’s C.V. and list of publications, invitations to present at conferences, articles about the individual’s work and any awards or honors received. The key document is a detailed letter, preferably from the immediate supervisor. This letter should:
1. describe in detail the significance of the project to the U.S.;
2. explain the specific role of the applicant in the project and why it is important for this particular individual to continue to be involved;
3. detail why this person is the right person for the job, covering education, experience and past research work;
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4. explicitly address any of the relevant factors from the list of seven above, and the four criteria proposed by USCIS in 1995; and
5. address the issue regarding why it would be in the national interest to waive the Labor Certification requirement.
Outside supporting letters should also be obtained to corroborate the principal letter. Letters should come from as high a level as possible, such as distinguished university professors or researchers, or corporate executives of companies that have benefited from the work, attesting to the importance and widespread recognition of the work. Primary care physicians who practice in Health Professional Shortage Areas (HPSA), or at Veterans Administration hospitals (VA) qualify for the NIW if they make a commitment to the HPSA or the VA for five years and meet certain other requirements.
The primary focus should be on the importance of the person’s work, rather than the pre-eminence of the person. The position can be relatively low in the academic hierarchy provided that the work is essential and the person is uniquely qualified to do the work. Any qualities that make the applicant unique should be stressed. If the applicant is the lead researcher and/or the project could not be continued in the person’s absence, explain this.
The letters should be understandable to laymen. Avoid high-tech jargon and stress the practical applications or implications of the project. Point out the impact of the work on daily life of U.S. residents, especially where it is not obvious. If the adjudicator can relate to and appreciate the importance of the work, the petition is more likely to be approved.
Due to the complexity of the NIW application, it is strongly recommended that applicants seek the assistance of a qualified immigration attorney with experience in filing this type of application. For tips on locating a qualified immigration attorney, see: http://www.ohr.wisc.edu/ifss/imminfo/LAWYERS.doc.
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