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Normally, individuals who try to get green cards through
employment need to go through the often lengthy and difficult process of labor
certification. This process
requires first that the foreign national (the employee) have an employer who is
willing to take up the responsibility of sponsoring the foreign national and pay
for a large portion of the costs. The
process also requires that the employer advertise the position in a variety of
media to see if there are any qualified Americans who may want the job.
If there are, the case cannot proceed.
One of the ways to avoid labor certification for Second
Preference cases is through the "National Interest Waiver" (NIW)
program. This program is a way for
certain individuals possessing exceptional ability in the sciences, arts or
business to immigrate to the US without having to go through labor
certification and without requiring employer sponsorship.
The purpose of the NIW program is to provide a
"short-cut" for individuals who have exceptional ability, who work in a field of "substantial
intrinsic merit" and whose work will be providing a benefit to the country
as a whole (rather than just a local community, state or region for example).
The principal criteria, therefore are that
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the applicant has "exceptional ability in the
sciences, arts or business,"
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the applicant seeks employment
in an area of substantial intrinsic merit,
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the benefit will be national in
scope, and
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the national interest would be adversely affected
if a labor certification were required.
The foreign national may "self-petition" meaning
that he/she rather than an employer signs the I-140 petition on his/her own
behalf. An employer is not required
to "sponsor" the foreign national or sign the petition.
(However, keep in mind that proof of employment in the field is a big
part of proving eligibility for NIW).
What is "exceptional ability"?
Exceptional ability means "a degree of expertise significantly above
that ordinarily encountered in the sciences, arts, or business" in the
language of the regulation.
The regulation lists the types of evidence necessary to prove exceptional
ability, and states that the applicant must have at least 3 of them:
- relevant degree, certificate or similar award from an institution of
learning;
- letters from current and former employers showing at least 10 years of
full-time experience in the field;
- relevant license or certification;
- evidence of salary or other remuneration indicating exceptional
ability;
- evidence of membership in professional associations; and/or
- evidence of recognition for achievements and/or significant contributions
by peers, governmental entities, or business/professional organizations;
If these standard do not readily apply, the regulation allows the applicant
to show "other comparable evidence" to establish he/she has
exceptional ability.
What is an area of "substantial intrinsic merit"?
Some of the areas that have been determined to be areas of
substantial intrinsic merit include:
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improving the US economy,
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improving
wages and working conditions for US workers,
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improving education and programs
for US children and underqualified workers,
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improving healthcare,
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providing more affordable housing,
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improving the US environment and making
more productive use of natural resources, and
-
interested government agency
request.
In practice, substantial
intrinsic merit has been found in fields ranging from coaching to medical
research to television reporting.
What is a benefit that is national in scope?
The benefit must to the country as a whole, rather than a
locality, state, region, etc. In
other words, there must be an appreciable impact on the national economy,
society, etc. So, for example, a
special education teacher, although working in a field that probably has a great
deal of "substantial intrinsic merit," does not really provide a
benefit that is national in scope. Rather,
the benefit is primarily limited to the community in which he/she is working.
Therefore, it is likely that type of position would not qualify for the
NIW program. On the other hand, a researcher in the field of special
education who publishes his/her studies to a national audience of education
researchers, would be more likely to meet the "national in scope"
criterion.
How may one determine if the national interest would be adversely affected
if a labor certification were required?
This criterion is a bit more difficult than the previous
two, in that it really requires looking at two other questions:
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would the
foreign national’s services serve the national interest to a
substantially greater degree than would an available US worker having the same
minimum qualifications?, and
-
does the foreign national demonstrate such
service by a record of achievements with some degree of influence on the field
as a whole? The answer to both
questions must be "yes" for the case to be approved.
To succeed with the first question, it is necessary to show
that the foreign national is not only more qualified than the majority of
Americans working in that same type of position, but that he/she is at
the top of his/her field. To
succeed with the second question, it is necessary to show that the foreign
national has had a track record of success in the field, and has had a degree of
influence on his/her field as a whole. (It
should be clear that these two questions are really inter-related, since it is
difficult to prove the likelihood of future success without showing a track
record of past success).
Taking the special education researcher example again, it
would be necessary to show that he/she is at the top of his/her focus of
research (this does not require that he/she be the top special education
researcher, but he/she must be at the top of his/her particular subset of focus
in special education), and that he/she has had a demonstrated track
record of success with his/her research influencing other researchers in that
field.
How is it possible to prove all these things?
Typically, the core of evidence for NIW cases is the
"expert opinion letters" provided by experts in the field that support
the argument that the foreign national meets all these criteria.
Although there is no minimum number of letters, generally speaking the
more the better. A good rule of thumb is no less than 10, but some cases may
require more.
While it is very likely that a good portion of these
letters will come from former or current co-workers and/or supervisors, it is
important to know that USCIS will give much more weight to letters from those
who do not know the foreign national personally, as these are more likely to
represent unbiased opinions. USCIS
may even request additional letters from "unbiased" experts if there
are too few in the initial submission. Since
the evidence that is submitted must closely address each criteria for NIW
eligibility, it is important that the letters speak to each factor in turn (or
as many as relevant for the expert).
Other forms of evidence include proof of an advanced degree
in the field; salary commensurate with position; awards or prizes; merit-based
association or society memberships; published materials in professional
publications written by others about the foreign national; participation as a
judge of the work of others in the same or similar field; original scientific or
scholarly contributions; and/or authorship of scholarly books or articles in
scholarly journals with international circulation.
Of course, there are many more details involved in getting
an NIW case approved, but this has given you a nutshell version of what the
program entails. We have
successfully handled many NIW cases, and would be more than happy to discuss
this further if you feel you may be eligible.
FOR MORE INFORMATION:
Contact John Byrley at
tel: 410-719-1501.
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