Normally, even those foreign workers possessing advanced degrees or those workers of exceptional ability may only receive an EB-2 immigrant visa after the worker’s employer has petitioned on his/her behalf. In doing so, the employer must submit proof of a job offer and must also complete and submit a labor certification requirement that demonstrates the foreign worker will not displace a U.S. worker. However, if that worker qualifies for a National Interest Waiver, he/she can self-petition for his/her green card, meaning he/she need not secure a job offer before getting his/her green card, and avoid the labor certification requirement, which can be a very lengthy process that could ultimately lead to the foreign worker’s denial of admission. It is important to note, however, that although the National Interest Waiver does permit a foreign worker to self-petition for himself/herself, his/her employer can still petition on his/her behalf, as well. Further, recent changes have made the process for and prospects of obtaining a National Interest Waiver tougher than before, so securing the aid of attorneys will extensive experience in National Interest Waivers is highly suggested. (To see examples of our firm’s history of helping foreign workers obtain a National Interest Waiver, please take a look at our National Interest Waiver Success Stories.)
Although the National Interest Waiver permits a foreign worker to side step the usual job offer and labor certification requirements of EB-2 immigrant visas, he/she still faces a high standard for showing that he/she should be eligible for a National Interest Waiver. Matter of New York State v. Department of Transportation (“NYSDOT”) set forth a three-pronged test to determine whether a foreign worker is eligible for a National Interest Waiver. As NYSDOT makes clear, the petitioning foreign worker must satisfy all three of the test’s prongs. Further, it is at the discretion of the Secretary of the Department of Homeland Security to grant the National Interest Waiver.
The first prong in the NYSDOT test is that the foreign worker must be seeking work in an area that is of intrinsic merit. In the NYSDOT case, the Administrative Appeals Unit (which is now known as the Administrative Appeals Office) determined that a civil engineer working with bridges satisfied this prong of the test given the importance of maintaining bridges. Subsequent to this case, the Administrative Appeals Unit, and later, Office, found an atmospheric scientist for NASA, chemists, geneticists, and other research scientists to be professions of intrinsic merit. However, the Administrative Appeals Unit was careful not to establish that every civil engineer or scientist, by virtue of his/her profession, would automatically satisfy this prong of the test. Instead, it encouraged a “case-by-case” approach to evaluating the intrinsic merit of a foreign worker’s trade.
Second, NYSDOT’s test requires that the foreign worker’s planned activities in the United States be national in scope. Essentially, the foreign worker’s effect cannot be local – his/her work must have a national impact. Types of impact that may be deemed to have a national scope include improving any of the following: the U.S. economy, wages, working conditions, education, health care, the environment, and access to housing for marginalized populations in the U.S. In addition, interest from a U.S. government agency could help establish national scope. The AILA guidelines point out that it will be easier to prove the national scope of scientists, doctors, and other researchers than business people, as the latter may seem more local or provincial. However, it is by no means impossible for business people to obtain a National Interest Waiver; they have been handed out for business people, especially in the case of business people that substantially improve their industries.
Lastly, the petition for the National Interest Waiver must show that permitting the foreign worker to side step the labor certification process will not be adverse to the national interest. In other words, foreign worker’s value must be so substantially greater than the value of an American citizen, that it would actually be contrary to the national interest to force the foreign worker to go through he labor certification process. This question of the benefits of the foreign worker outweighing the protections afforded by the labor certification process run throughout the other two prongs, as well—a profession of little merit and/or of limited scope could not benefit the United States enough to justify disregarding the interests of American workers. Being important to a certain study or endeavor will not suffice; the foreign worker must offer a substantially greater benefit than its American counterpart.
Luckily, a foreign worker does not have to meet the “extraordinary ability” standard of EB-1 immigrant visas—which requires proof that the foreign worker is in the very top tier of his/her profession—and instead need only show that he/she is noteworthy amongst his/her peers. In addition to proof that he/she has obtained an advanced degree in the particular field in which he/she will work, the following information will help establish how he/she stands out from others in his/her field: endorsement letters from industry leaders, officials of government agencies, professional trade associations, and professors; a list of the foreign worker’s publications, patents, awards, prior speaking engagements and conference presentations, his/her reviews of the work of others in his/her field, citations in foreign publications, and citations of his/her publications by others. Keeping in mind the discretionary nature of the National Interest Waiver, it is generally advisable to secure recommendations, commendations, or evaluations from those who do not know the foreign worker personally, as endorsements from neutral parties will be more persuasive.