Some professionals with Advanced Degrees and persons of Exceptional Ability are not required to have a labor certification granted to them before they can apply for permanent residence if their field of expertise is in the U.S. national interest. This is called a National Interest Waiver (NIW) because the normal requirement to seek a labor certification is waived or exempted for the employee.  In fact, persons eligible for the NIW are also exempt from the job offer requirement and can self-petition for their own permanent residence.

But you might ask, what is in the national interest? The law was not very clear or defined until 1998 when a precedent government decision called Matter of New York State Department of Transportation (NYSDOT) was issued which provided a set of factors to be considered. Below are some of these key requirements that must be demonstrated.

1. Show that the planned work in the United States is in an area of substantial intrinsic merit

Under this first prong of the NYSDOT test, it is important to consider the prospective employment and whether it can be shown that the planned work has substantial intrinsic merit.  Recommended types of evidence include:

• Articles or other published media discussing the importance of the planned work
• Letters from recognized experts in the field of endeavor attesting to the applicant’s area of expertise

2. You must show that the proposed impact of the work is national in scope

Even though the proposed permanent employment may have a tremendous impact on a local or regional area, it will be critical that the work will provide a benefit to the entire country. Under this second requirement under NYSDOT, whether the proposed benefit is national in scope will require that it can be shown that the benefit is substantially greater than the work of others in the same occupation or field. The type of documentation that can be considered:

• Published articles or media reports describing the field of expertise
• Testimonials experts and from past and present employers who can attest to the national importance of your work
• Letters from experts in the field attesting to your work and its national importance

3. The national interest would be negatively impacted if a labor certification were necessary. 

The purpose of the labor certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. So, when deciding whether to grant a waiver, USCIS looks at all of the evidence to see whether the national benefits considered are more important than the national interests at risk in the labor certification process. Some of the documentation that is important to demonstrate that waiving the labor certification requirement would benefit the national interests of the United States includes:

• Copies of published articles that cite or otherwise recognize achievements
• Copies of grants or other funding received
• Documents showing how your work is being implemented by others, for example:
  • Contracts with companies using your or your company’s products
  • Documents showing licensed technology that you and/or your company invented or co-invented, and how that licensed technology is being used by others
  • Patents or licenses awarded to you and/or your company with documents showing how they are being used and why they are significant to your field

Considering whether to seek a labor certification or a national interest waiver must be carefully evaluated. Not all professionals fall within this exemption, and the better option may be testing the labor market. At HarrisLaw, we will closely work with you, the persons who have witnessed your accomplishments, and develop your case to show how you field of expertise is in the national interest, and how it will prospectively benefit the United States.  We have extensive experience in the filing of National Interest Waivers for persons in the field of business, financial banking services, and other unique areas. Please contact us for an initial no obligation evaluation of your case.

[printfriendly]