Between the 2 prevalent fast-track categories for scientists, the EB2 National Interest Waiver/NIW is often the “easier” one to prove.
There are strategic reasons for why a foreign national may need to file an EB1 (or Extraordinary Alien) case, i.e. if the person is Indian or Chinese where the immigrant visa numbers are backlogged – meaning it would take a few years to obtain a green card.
But, for foreign nationals from other countries, the NIW category is the way to go if they qualify. The advantages are: an applicant can Self Sponsor, so one is not tied to a specific employer and can change jobs; the process is considerably faster than the employer sponsored Labor Certification process (requiring a recruitment period); and does not require a permanent job offer.
National Waiver Interest Requirements:
To qualify for a National Interest Waiver (NIW), the applicant must hold, at a minimum, an advanced degree. A U.S. academic/professional degree or a foreign equivalent degree above that of a Bachelor’s degree is the threshold.
Another option is for the applicant to claim exceptional ability in the sciences, arts or business, i.e. a degree of expertise significantly above that ordinarily encountered in the field of expertise. We will explore the Exceptional Ability standard in another blog.
The NIW Standard is famously set forth in a landmark case: NYSDOT. In order to qualify, an applicant must satisfy the requirements of the three-prong test defined in New York State Dept. of Transportation 22 I&N Dec. 215 (Comm. 1998) (aka: NYSDOT):
(1) The beneficiary must seek to work in an area of substantial intrinsic merit; or work in a field that is valuable to the national interest of the U.S. Research in any scientific field, for example, can fit so this prong is usually satisfied.
Here are some examples (the list is not exhaustive):
1. improving the U.S. economy;
2. improving wages and working conditions of U.S. workers;
3. improving health care;
4. providing more affordable housing for poorer U.S. residents;
5. improving the U.S. environment or
6. involving a request from an interested government agency.
(2) The applicant’s work must have a benefit which will be national in scope, meaning it cannot have a limited geographical or merely regional impact. An applicant who has published research can usually show that the work has a national scope since academic publications are disseminated nationally and internationally. In the absence of publications, an applicant can show that the impact of his/her work is national in scope; for example, a cancer researcher can show that her work to find optimal treatment options can benefit patients across the U.S.
(3) And, now comes the difficult prong. The beneficiary must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Or, the national interest would be “adversely affected” if a labor certification (PERM) was required for the beneficiary.
This standard did not exist prior to the NYSDOT case and has added an extra burden on the applicant – imposing the difficult task of explaining that, in fact, the focus of the case is not about a job being taken away from an American. Rather, the benefit of the foreign applicant’s work to the U.S. is so great that it outweighs an inherent interest in protecting U.S. workers.
To successfully clear this prong, you must submit evidence to establish a past track record of important achievement. USCIS can then project future benefits to the U.S. national interest. The achievements need to be real, at times quantifiable and capable of independent proof, i.e. publications, awards, patents, journal peer reviews, invited international conference presentations, and other similar evidence. Objective evidence is required, such as how many first-authored publications and independent citations by other scientists. Subjective evidence is also carefully weighed, such as testimony by independent experts in the field.
To conclude, the foreign scientist makes essential contributions that benefit the U.S. and the immigration service recognizes that fact. It is critical to first take stock of the evidence you can provide to make a successful NIW case. Overcoming the considerable hurdles requires careful planning and analysis but is worth the effort if it means a faster route to U.S. permanent residency as well as the freedom to change employers.
Reshma D. Parmar
Attorney at Law
I am an established business immigration attorney, licensed to practice immigration law nationally, with over 12 years of highly specialized experience working with scientists and researchers in a wide range of fields. I also work as Of Counsel, providing consulting to law firms on EB1 and EB2 matters.
Comments, suggestions or questions are welcome.
The statements in this blog are my observations based on my experience as an immigration attorney. I do not intend for them to serve as immigration advice to a reader to be relied upon, nor should they be understood or interpreted to form an attorney/client relationship.