NATIONAL INTEREST WAIVER/EXTRAORDINARY ABILITY


	LAW OFFICE OF AJAY K. ARORA Empire State Building 350 Fifth Avenue, Suite 2806 New York, NY 10118 Phone: (212)268-3580 Fax: (212)268-3582 Email: info@h1b1.com

Disclaimer: This article is not intended to establish an attorney-client relationship. All information contained herein is generalized. Any reliance on information contained herein is taken at your own risk.

H-1B

PERM

L-1

EB-1

NIW

O-1

FAMILY SPONSORSHIP

OTHER IMMIGRATION

EMPLOYMENT BASED CATEGORIES

The two principal avenues by which people abroad immigrate to the U.S. is through the employment-based (EB-1, EB-2, and EB-3) and the family-based categories. The employment-based category is divided into several subcategories.

The EB-1 category is composed of three sub-groups:

Persons of Extraordinary Ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. A specific job offer is not required (an individual can file their own petition with the USCIS, rather than go through an employer) so long as the applicant will continue to work in the U.S. in the field in which they have extraordinary ability.

Outstanding Professors and Researchers with at least three years experience in teaching or research, and international recognition. Labor certification (also referred to as PERM) is not required, but the prospective employer must provide a job offer and sign the immigrant petition.

Multinational Executives and Managers are the third sub-group of the EB-1 category. Qualified persons must have been employed for at least one of three preceding years in an executive or managerial capacity by a U.S. parent, subsidiary, branch, or affiliate of a foreign corporation. Labor certification is not required, but the prospective employer must provide a job offer and file a petition with the USCIS.

Persons falling into the EB-2 category must have a labor certification (commonly known as PERM) approved by the Department of Labor. A job offer is required, and the prospective U.S. employer must file a petition on behalf of the applicant. An application may be made for an exemption of the job offer and labor certification requirements if it would be in the "national interest." (We will cover the national interest waiver after we cover the EB-3 category below). There are two subgroups within the EB-2 category:

Professionals holding an advanced degree (beyond a baccalaureate), or a baccalaureate degree and at least five years progressive experience in the profession.

Persons with exceptional ability in the arts, sciences, or business significantly above that ordinarily encountered within the field.

EB-3 category applicants must be sponsored by their prospective employer in all circumstances. There are three subgroups:

Professionals with a baccalaureate degree.

Skilled workers, i.e., those capable of performing work requiring at least two years experience or training.

Unskilled workers, i.e., those persons capable of filling positions requiring less than two years training or experience.

NATIONAL INTEREST WAIVER (NIW)

A National Interest Waiver (NIW) may be filed by persons classified as employment-based second preference. The beneficiary of a NIW is exempt from the requirement that his or her employer first obtain a labor certification (commonly known as PERM) from the Department of Labor. Moreover, a job offer is not required, thereby allowing the intending immigrant to self-petition.

Since the beneficiary of a NIW must fall into the EB-2 category, he or she must qualify as either an "advanced degree professional" or as an "alien of exceptional ability." We have defined advanced degree professional above. To show that the intending immigrant is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:

An official academic record showing that the foreign national has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;

Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

A license to practice the profession or certification for a particular profession or occupation;

Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

Evidence of membership in professional associations; or

Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If the above standards are not immediately applicable to the beneficiary's occupation, comparable evidence may be submitted to establish eligibility.

To qualify for the NIW, the individual’s work must benefit the national interest of the U.S. The term national interest has been left undefined, but the Administrative Appeals Unit of the USCIS has suggested that one or more of the following factors be taken into consideration:

Improving the U.S. economy;

Improving wages and working conditions of U.S. workers;

Improving education and training programs for U.S. workers;

Improving health care in the U.S.;

Providing more affordable housing in the U.S.;

Improving the environment; or

A request from an interested U.S. Government Agency.

Supporting evidence includes a one-time achievement (i.e., a major, internationally-recognized award), or at least three of the following:

Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; or

Membership in associations in the field which require outstanding achievements as judged by recognized national or international experts, published material about the foreign national in professional or major trade publications or other major media; or

Participation on a panel or individually as a judge of the work of others in the field or an allied field, or

Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; or

Authorship of scholarly articles in the field, in professional or major trade publications or other major media; or

Display of the foreign national's work at artistic exhibitions or showcases; or

Evidence that the foreign national has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; or

Evidence that the foreign national has commanded a high salary or other high remuneration for services; or

Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Comparable evidence to establish eligibility may be submitted if the above criteria are not applicable to the applicant’s occupation.

IMMIGRANT PETITION FOR FOREIGN WORKER AND ADJUSTMENT OF STATUS

An Immigrant Petition for Alien Worker (Form I-140) is the form that is used to ask the USCIS for employment-based classification in one of the three employment-based categories (EB-1 through EB-3). Form I-140 may need to be filed along with the Labor Certification (duly certified by the DOL).

Let us summarize situations where a Labor Certification is not required:

When employment in the U.S. is in the "National Interest," and the foreign national qualifies in EB-2 as a person of exceptional ability in the Sciences, Arts or Business, or as a Professional with an Advanced Degree.

When an individual falls into EB-1 as either a Person of Extraordinary Ability in the Sciences, Arts, Education, Business, or Athletics; Outstanding Professor or Researcher; or Managerial or Executive Transferee.

The last step in the permanent resident (green card) process is the filing of an adjustment of status application with the USCIS if the candidate is currently in the U.S. Click here to determine if you may be subject to an immigrant visa waiting list prior to filing an adjustment of status application. The applicant needs to seek travel permission ("advance parole") if he or she needs to travel while the adjustment of status application is pending with the USCIS. The foreign worker also has the right to receive employment authorization, allowing him or her to commence employment while his or her adjustment of status application is being processed. The adjustment of status application can be filed concurrently with the I-140 petition (assuming that the priority date is current, of course), or it can be filed when the priority date becomes current.

Foreign nationals based overseas can process their immigrant visas at consular posts ("Visa Processing") in their home countries. Click here to determine if you may be subject to an immigrant visa waiting list prior to Visa Processing. Individuals who violated their status in any way (violations for up to 180 days may be excused in employer sponsorship cases) and are not eligible for adjustment of status must also return to their home country for consular processing.

There may be an advantage in utilizing the Adjustment of Status procedure rather than Visa Processing. The first advantage is the savings in cost and inconvenience of the long trip back to their home country. Moreover, the foreign national will have the right to appeal a denial of the adjustment of status application through the U.S. court system, a right that is not available to him or her through Visa Processing.

CONTACT OUR LAW FIRM

Very few candidates are eligible for self-petitioning in the EB-1 category or the EB-2 with National Interest Waiver. A PERM application can be filed for any candidate, however, as long as he or she has the support of their employer. Please contact our law firm for a free legal consultation.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]

Ajay K. Arora, Esq., is a prominent member of the Immigration & Nationality bar in New York City and a member of the American Immigration Lawyers Association. He may be contacted at (212)268-3580.