The Departments of State and Homeland Security have announced new actions to advance the course for international scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America. These announcements build on the Biden Administration’s efforts to remove barriers to legal immigration.
In accordance with this action, the U.S. Citizenship and Immigration Services (USCIS) has updated policy guidance to clarify the eligibility requirements for national interest waivers for advanced degree professionals or persons of exceptional ability.
What is a National Interest Waiver?
A National Interest Waiver is a provision in the immigration law that permits an individual to apply for permanent residency in the United States, even if they are unable to meet certain requirements of the law.
This waiver was introduced for foreign nationals with extraordinary abilities and advanced degree professionals. Prior to USCIS’s latest policy, these individuals had to request that an employer file an Immigrant Petition for Alien Workers (Form I-140).
Yet, the Immigration and Nationality Act (INA) that went into effect on January 21, 2022, now provides that USCIS may waive the job offer requirement, and therefore the rigid labor certification process, if it’s in the national interest of the United States to do so. This national interest waiver essentially allows immigrants to petition for themselves, without an employer as their sponsor.
What Is Being Waived?
Normally, an EB-2 category green card process requires an employer to sponsor someone by offering a permanent job and “testing” the labor market to see if there are any qualified U.S. workers who are available instead.
This process, known as labor certification, can be lengthy and expensive. With the national interest waiver, on the other hand, United States Citizenship and Immigration Services (USCIS) decides that the person’s work is so important to our country that there’s no need to give first priority to a U.S. worker. It will thus “waive” or set aside the requirements of employer sponsorship and labor certification.
Who is Eligible for a National Interest Waiver?
Individuals seeking a national interest waiver must show evidence of an advanced degree or exceptional ability and must also meet three factors that USCIS uses to determine, in its discretion, whether it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification.
A noncitizen may qualify for the exceptional ability visa classification if:
- He or she has exceptional ability in the sciences, arts, or business; and
- He or she will substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future.
The applicant must provide evidence that they have achieved national or international acclaim and the achievements are recognized in the field of expertise.
Advanced Degree Professionals
To meet the Advanced Degree requirement the applicant must hold a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field. You must meet any other requirements specified on the labor certification as applicable.
To qualify for the national interest waiver, USCIS considers 3 factors:
The person’s proposed endeavor has both substantial merit and national importance.
The person is well-positioned to advance the proposed endeavor.
It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
How Can Applicants Apply for the Waiver?
Those seeking a national interest waiver may self-petition using Form I-140, Immigrant Petition for Alien Worker along with supporting documents directly with the appropriate Immigration Service Center. You do not have to file anything with the Department of Labor.
Processing times for national interest waivers depends on the caseload at the Immigration Service Center, which can vary greatly over time. Current processing times are estimated by the Service Centers.
Keep in mind that USCIS offers immigration services that may help people affected by unforeseen circumstances such as natural disasters. For instance, you may request to extend a nonimmigrant stay for an individual currently in the United States. Or you may receive an expedited replacement of lost or damaged immigration or travel documents issued by USCIS. Visit the USCIS Special Situations page for a list of measures that can be taken to assist individuals affected by unforeseen circumstances.
Advantages of National Interest Waivers
- A National Interest Waiver does not require a labor certification or a permanent job offer in the United States. This allows a greater degree of flexibility and career opportunity.
- You can self-petition. That is, the form does not require the signature of anyone at a university of business.
- The updated guidance serves to promote effective and efficient processing of benefits.
Our Tampa Immigration Lawyers Can Help
The national interest waiver is available immediately and qualified individuals should act as soon as possible.
If you would like to discuss your business and immigration status options including potential qualifications for the National Interest Waiver, please contact our office for a consultation. We can help assess your eligibility and assist with the process.
ABOUT THE BENKABBOU LAW FIRM
The Benkabbou Law Firm, PLLC, is a boutique law firm located in Tampa, Florida. Our firm focuses on business law, immigration law, business immigration law, and intellectual property law. At our firm, we treat our clients like family and treat their interests and dreams as our own.
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