When a National Interest Waiver May Be the Preferred Course of Action
Many of our clients perform very important services of significance or potential significance to an important government, scientific or medical interest, to private industry or to large numbers of people. However, often the traditional method of obtaining permanent resident status through employment – the labor certification application – is either not possible or not a preferred course of action for these individuals. A labor certification application may not be possible if the services are not being performed in a full-time employer/employee relationship, if the prevailing wage is not being paid, if it will not be possible to detail objective and quantifiable requirements for the job that set the alien apart from available U.S. workers or if the employer is not willing to file an application on behalf of the employee. Labor certification application, even if possible, may not be advisable or preferable, especially since the procedure may involve very costly advertising and significant employer time in interviewing job applicants, as well as the very lengthy processing times – often in excess of two to three years.
The alternative is usually either an extraordinary ability petition or a national interest waiver petition, neither of which requires employer sponsorship or labor certification. The extraordinary ability petition requires substantial documentation to prove that the foreign national is recognized nationally or internationally as one of the top people in his or her field of endeavor. By definition, this classification is reserved for only a very small percentage of individuals with the highest levels of accomplishment and reputation in a given field.
For many individuals, the national interest waiver petition is the preferred option. As a method of applying for permanent resident status, it has the following advantages:
- No job offer required.
- No labor certification required.
- No prevailing wage requirement.
- No recruiting required.
- The applicant does not need to prove extraordinary ability or national or international reputation.
- Relatively prompt action by US Citizenship and Immigration Services.
- No rules limiting what is and is not considered to be in the national interest.
Requirements for a Successful National Interest Waiver Petition
Nevertheless, the national interest waiver petition process does require a substantial amount of creativity and documentation. Based upon substantial experience of our lawyers in filing large numbers of successful national interest waiver petitions, we have compiled the following guidelines and practical advice regarding the preparation and presentation of a successful national interest waiver petition.
The successful national interest waiver petition should include substantial documentation to support each of the following major issues:
- What is the national interest?
- Why is the applicant unique or essential in furthering this national interest?
- What has the applicant actually accomplished relating to this national interest, and what is the applicant’s potential for further accomplishments?
- What is the national impact of the applicant’s work, and to what extent is the applicant superior to most others in this field?
- Why is a labor certification application inappropriate?
- What is the applicant’s advanced degree and/or exceptional ability?
National Interest
First and foremost, it is necessary to identify what the national interest is. This is sometimes obvious and sometimes requires probing and creativity. For example, it is not difficult to identify the national interest being served by a cancer researcher. However, it is more challenging to prove the national interest in certain areas of basic science research with no immediate application or in the case of an employee of a private company who enables that company to expand a product line or improve a technology.
Once the national interest is identified, it must be documented. Sources of documentation vary depending upon the nature of the national interest being claimed, but we often include: articles in the popular literature; articles in the technical or scientific literature; materials available from government agencies; materials available from libraries or the Internet; materials available from the applicant’s company or technical advisor; materials available from reports and studies to which our law firm has access; and reference letters.
Applicant’s Uniqueness or Essentiality
It is not enough to prove that the applicant is involved in work that is in the national interest. For example, if the applicant is performing routine or easily replaceable duties in the most important medical research or national defense project, it would likely be difficult or impossible to succeed with a national interest waiver petition. Rather, it is necessary to prove and document that the applicant’s services are either unique or are critical, essential, not easily replaceable, the product of advanced levels of study or experience and highly valued. Generally, reference letters will be the key to proving this element of the case. Obviously, reference letters from people intimately familiar with the applicant’s work on the national interest project are preferred. However, it is very worthwhile also to include reference letters from people who may not know the applicant but who can discuss how the skills, abilities and talents that the applicant provides are critical or essential to the national interest project.
Applicant’s Accomplishments
It is critical to document the applicant’s actual accomplishments in the field of national interest. It is not sufficient to rely upon the applicant’s potential accomplishments. The actual accomplishments should be shown to be highly significant, beyond that which might be normally expected of others in the field. Potential accomplishments in the future are worth discussing as a follow-up to achievements already accomplished by the applicant.
National Impact
It is important to document how the applicant’s work has impacted others in the field on a national, rather than a local basis. This would normally be documented through reference letters from geographically diverse sources explaining how the applicant’s work has benefited the author or others known to the author. As part of this showing, it is recommended that the evidence demonstrate that the applicant’s impact is greater than most of the applicant’s peers in the field.
Labor Certification Application Is Inappropriate
It is recommended that an explicit explanation be provided regarding the reasons that an individual labor certification application is inappropriate and that a waiver of the labor certification requirement is appropriate. This is often shown by proving that the applicant is far above the level of others in the field such that recruitment to find a qualified U.S. worker would be illogical. Another strategy for meeting this requirement is a showing that the applicant actually initiated or developed a new procedure or field such that recruitment for others would serve no purpose. Another example might be where an individual is in the middle of a project such that it would be illogical to have anyone else follow through on the project of which only the applicant has knowledge or ability.
Advanced Degree or Exceptional Ability
Technically, it is sufficient for the applicant to prove that he or she has attained a master’s degree or higher in a relevant field in order to meet this requirement. However, as a practical matter, it is generally highly advisable to also attempt to prove the applicant’s “exceptional ability.” Exceptional ability is a high standard of ability, but significantly lower than the standard of proof required for an extraordinary ability petition. However, exceptional ability does require proving a level of ability well above the average normally expected in a given field. For this purpose, proving reputation outside of the applicant’s present or past schools or employers is very valuable.
The following categories of documents are recommended to prove exceptional ability:
- Documentation of receipt of major prizes or awards for outstanding achievement. If it is not obvious from the copy of the award document, a letter explaining the significance of the award or prize is very helpful.
- Documentation of membership in associations that require outstanding achievements of their members.
- Published materials in professional publications written by others about the applicant’s work. These are not articles written by the applicant; they are articles written about him or her. Also included in this category would be articles citing the work.
- Evidence of participation as the judge of the work of others.
- Evidence of original contributions to the field. Normally, this is explained in reference letters. Patents, if any, are relevant here.
- Evidence of authorship of books or articles.
Reference Letters
Reference letters explaining the national interest are often the key documents. When we prepare a national interest waiver application, we actually draft model letters that clearly explain the beneficiary’s qualifications and contributions to the field. We make sure that we do so in language that the Immigration Examiner will understand, and that the letters address the points that are important to get an approval.
Attorney’s Summary
Finally, and sometimes most importantly, it is usually critical to present, summarize and explain the documentation in a manner that strongly advocates the sufficiency of the evidence to meet the required standards. In this regard, it is important to understand that the adjudicators of the petition will almost always have little or no substantive knowledge of the national interest area being discussed. Furthermore, they will often be disinclined to read and carefully consider large amounts of technical documentation. It is therefore of the greatest importance to explain and summarize the documentation in a way that makes clear to the decision-making authority how each of the items of evidence, separately and cumulatively, prove all of the required elements of a national interest waiver petition.
Conclusion
Perhaps more than in any other area of immigration law, good and creative lawyering is critical to the success of a national interest waiver case. Although a significant expenditure of time and effort is required to obtain the substantial amount of documentation that is usually necessary to prepare and present a successful national interest waiver petition, the advantages of doing so often outweigh any alternative procedure that might be available for obtaining permanent resident status. If properly prepared, a national interest waiver petition is often the best and most expeditious method of obtaining permanent resident status for a qualified individual.
Samples of Approved National Interest Waiver Petitions
The following is a small sample of some of the hundreds of approved national interest waiver petitions filed by our attorneys:
- Economic Consultant enabling small companies to expand, increase employment and increase exports.
- State Chamber of Commerce employee advising businesses on developing and implementing an export strategy.
- Doctors performing medical services in medical shortage areas.
- Researcher developing computer neuro-skeletal human body model to develop mechanisms of replacing standing function in patients disabled by spinal cord injury.
- Employee of company engaged in developing training seminars to train Chinese managers in U.S. management systems.
- Employee of company whose expertise enables company to engage in substantial export of medical devices.
- Director of outreach at a national resource center expanding the availability of information about Africa to school children and the government.
- Chemist investigating the possible uses of carbohydrates for developing new drugs.
- Researcher involved in novel forms of sickle cell anemia research.
- Researcher performing computer climate modeling.
- Corporate researcher involved in research to develop a vaccine to treat a severe childhood virus.
