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February 21, 2018

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The National Interest Waiver: A Surprisingly Versatile (Last Ditch) Permanent Residency Self-Petition for Foreign Workers

September 4, 2016

***This post is addressed to attorneys and was originally submitted as a guest blog to the State Bar of Texas***

 

 

David is a foreign lead engineer for a major oil and gas company.  His successful U.S.-based career has followed a familiar path: perhaps he attended an American university on an F-1 visa, took advantage of Optional Practical Training to get his foot in the door with a great company, and was lucky enough to get sponsored for an H-1B (not an easy proposition these days).  David’s star is rising fast.  But as he climbs, he also approaches a black hole: his days on an H-1B or an L visa are numbered, and when he reaches the limit, he may have no choice but to leave the U.S., and his promising career, behind forever.  Worst of all, many employers now categorically refuse to sponsor even their best employees for permanent residency as a matter of policy, given the risks, cost, and frustration involved.

 

This scenario leaves a great many high-functioning engineers, scientists, operations managers and others with few options.  Of the many ways to acquire an employment-based green card, only two can be self-sponsored: the EB-1A Extraordinary Ability petition and the EB-2 National Interest waiver.  This post will focus on the latter.

 

The National Interest Waiver is found in the second employment-based preference category for visa petitions, reserved for those aliens with a master’s degree or “exceptional ability.” By statute, the EB-2 category requires a labor certification from the U.S. Department of Labor and employer sponsorship unless the alien can prove that waivi­ng these requirements in his or her case would be in the national interest.  The applicant must prove three things: 1) the area of work is of substantial intrinsic merit; 2) the proposed impact of the work is national in scope; and 3) the national interest benefit inherent in upholding the labor certification requirement would be outweighed by the benefit of the alien’s work to the nation.  

 

The key case is Matter of New York State Department of Transportation, Int. Dec. #3363 (Administrative Appeals Office 1998).  The agency stressed that neither general arguments regarding the importance of the field nor evidence of worker shortages was sufficient to obtain the waiver. Rather, “[t]he alien…clearly must have established, in some capacity, the ability to serve the national interest to a substantially greater extent than the majority of his or her colleagues.” And this must be established by “a past history of demonstrable achievement with some degree of influence on the field as a whole.”  

 

And therein lies the art for the lawyer: painstakingly mining a career for that instance of professional success which reverberated beyond the alien’s (often minor) sphere of influence.  Academics sometimes have it easy, especially with an extensive record of publications, but the work of engineers and managers is practical, team-oriented, confidential, and usually anonymous.  One borderline case was approved for an electronics engineer who developed a work method in one internal publication which influenced operations at a rival company across the border in another country.  Another approved case showed a supply chain manager developing a workflow in Canada which was then adopted, by that same international company, in the U.S.  Finding two or three instances of similar conduct is advisable, but the USCIS Texas Service Center is generous if even one such achievement is well-developed in the petition. 

 

I conclude with five tips, borne of experience, for a successful national interest waiver petition:

 

1.  Don’t get the reader lost in a myriad of minor achievements: pick one or two themes (such as “national interest benefits to the environment” or “worker safety”) and stick to them.

 

2.  Good support letters from experts are fundamental.  Be involved in the drafting.  Communication is the lawyer’s art and it makes a huge difference.

 

3.  Don’t be boring.

 

4.  Don’t try to blow the adjudicating officer away with technical mumbo-jumbo.  Translate it into English.  If you don’t understand what the client does, neither will USCIS.

 

5.  This is just good lawyer sense, but reference every statement and fact to exhibits.  And on that note, don’t leave it to USCIS to piece your argument together for you, even if it seems obvious.  Write a good brief.

 

While intimidating even to some immigration attorneys, the national interest waiver category is the only option for many successful professionals to continue their careers in the U.S. and give their children a realistic chance to make a life here.  Knowing that this category is available, and knowing how to turn a difficult case into a passable one, can make a huge difference in the lives of individuals and the success of the businesses that employ them.

 

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