National Interest Waiver: Not just for Scientists

jobs-and-occupations.jpgA big question that many people have, before even asking if they would qualify for a National Interest Waiver application, is can I even file one considering that I am a [fill in the blank with your profession].  You may be surprised that, for the most part, the answer is “Yes, people in that profession can apply for a National Interest Waiver”.  Business people, engineers, researchers, some computer people as well – all these professions (and many more) can work with the National Interest Waiver.

First, before discussing how they qualify, let me explain what the National Interest Waiver is and why people want to file that application.  The National Interest Waiver is what is called a self-sponsored application – that is an application in which the beneficiary (the foreign national) is also the petitioner.  This means NO employer or family member is needed to sponsor you.  To qualify, a foreign national must show that their proposed endeavor (the work they want to do in the US) is of substantial merit and national importance.  The must also show that they are well positioned to carry out the proposed endeavor and that it would be beneficial to the National Interest to waive the job requirement.

As you can see from the requirements, a business person who can show that their past business activities helped the US economy or helped employ people, or affected how other businesses operate can show that they meet all three categories as listed above (please note, I did not say that it is guaranteed that they can meet the three categories, just that such a position has the potential of meeting all three categories.  It always will come down to that actual evidence the person is able to get).  The same holds true for other areas as well.  Even engineers and computer personnel who may not publish their work may still be able to make a good case for the National Interest Waiver.  Under the new standard, it is not only research and discoveries that are looked at but entrepreneurship is also looked at for its ability to help our economy and lower unemployment.

There are some limitation, however.  For example, a chef working at a 5 star restaurant, regardless of their renown, etc. would have a hard time showing that their work is in the National Interest.  A painter/artist would similarly have a hard time showing that they qualify for a National Interest Waiver, as would a programmer for a company with 50 other programmers who does not do anything special at that company. What it comes down to is that it is what you do in your occupation rather than the occupation you are in that matters for the National Interest Waiver. That means that people in ANY occupation COULD qualify.  For example, an artist who starts to work in art therapy and publishes on the techniques they use, or who opens up a business and hires US Citizens, etc.  This is really the same for any occupation – because, as stated above, any occupation can do activities that would fit within the National Interest framework – it is just not quite as straight forward or easy for certain occupations.  If you have any question, or wish us to review your CV to see if you could qualify in this category, please do not hesitate to call or email me.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

The National Interest Waiver – Within the Reach of Many

The National Interest Waiver application is a self-sponsored application that is a good fit for many, many researchers and others looking to get permanent residence inth
the US. While many people feel that they need to show they are working for our government or something similar in order to show that their work i
s in the National Interest, this is actually not the case. The National Interest Waiver, while not easy to get approved, is much less restrictive than the E
xtraordinary Ability application and many people may be surprised that once they review the standard, that they can in fact qualify for this green card category.

So what are the actual qualifications for this application and how do you show your work is in the national interest? Unfortunately, this is a case in which both Congress and USCIS did not issue any guidance as to what the standard should be, so it was left to the courts. Specifically, the Administrative Appeals Office (AAO), in a precedent case (Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT)) did explain what is needed to show that your work is in the national interest. After the AAO issued this decision, USCIS formally adopted the decision as their standard.

The NYSDOT case laid out a three part test to determine if your work is in the national interest: 1) you must be seeking work in an area that has substantial intrinsic merit; 2) you must demonstrate that the proposed benefit to be provided by your work will be national in scope; and, 3) you must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making your position available to US Workers.
While the above can seem daunting in theory, it is not quite so daunting in practice. What it comes down to is showing you are, and will be, working in an important area and that you have already made a significant impact on your field. What type of documentation can show this?

If you are a scientist you can show this through publishing and presenting your work, citation history, peer reviewing, being accepted for oral presentation or invited to talk, having a paper highlighted at a journal website or elsewhere, having press about your findings. Please note, the above is a list of documents that CAN be used to show eligibility, and it is not a list of ALL documents that are needed, as you can be approved with less than all the above documents.
In general, while this is similar to the same type of documentation that is used for the Extraordinary Ability application, a key difference is that the NIW is a less restrictive standard than the EA. For instance, the Administrative Appeals Office, in looking at EA cases has indicated that perhaps 200 or more citations would be considered “a good number”. For the NIW application much less citations are needed. Many cases we have seen there are only 40-70 citations overall. Instead of having to show you are one of the few at the top of your field, the extent of your impact and influence on your area is key. This also me
ans that you do not need to be the first named author on your papers as it is the impact, not your renown, that is the key for the NIW.

For areas other than the sciences, such as foreign relations, health policy, etc, while the type of documentation can be much the same as above – publications, press, etc, you also have the opportunity to look at your role within projects, programs, or other initiatives. It can also be much more letter focused with letters from government officials or NGOs about the use and implementation of your work, etc. It all depends on whether your work is more academic related or applied in the field.

In essence, US interests are broad in nature, and thus, depending upon the extent of your standing within a specific area, you may very well be a good candidate for this type of visa application.

Please remember, always get your legal advice from an attorney and not a blog. Call and talk to an attorney to get the specifics of this status and your ability to qualify.