 |
 |
National Interest 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.
|
