Many foreign researchers are unaware of the fact that they can petition for Permanent Residency without the support of their employer through a process called a national interest waiver. In fact, an applicant under this category can apply under Employment Based (EB-2) Second Preference (INA §203(b)(2), 8 U.S.C. §1153(b)(2)), 8 C.F.R. §204.5(k) and use concurrent filings of Forms I-140 and Form I-485, Application to Register Permanent Resident or Adjust Status. This concurrent filing is permissible under 8 CFR 245.2(a)(2) of the Statutes. The Researcher must establish though that they an Alien of Outstanding Researcher whose employment in the United States would greatly benefit the nation as dictated in the controlling statutes of INA §203(b)(2)(B), 8 U.S.C. §1153(b)(2)(B); 8 AFM at 22.2(j)(4).
When NIW for a foreign researcher they must file for a Labor Certification. Aliens seeking a national interest waiver though are requesting that the Labor Certification be waived because it is in the interest of the United States. When research has the potential to benefit the nation as a whole, the argument is that the nation would be harmed if a labor certification were required as they could potentially lose this gifted researcher.
Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation.
Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker and the employer or applicant can sign the petition.
The “national interest” exemption must be significantly higher than required to establish prospective national benefit required for all persons seeking “exceptional” status. In Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm. 1998) [“NYSDT”], the legacy INS has given guidance regarding the threshold for a waiver including the following criteria:
(1) The person seeks employment in an area substantially intrinsic merit;
(2) The benefit will be national in scope; and
(3) The national interest would be adversely affected if a labor certification were required.
Furthermore, USCIS suggest seven other factors to consider. Since there is not a significant amount of guidance on the national interest waiver in terms of requirements, USCIS suggests looking at the requirements for exceptional ability.
1. Has 3 years experience in teach or research in the academic area;
2. Seeks entry:
(a) For a tenure (or tenure track) teaching position;
(b) Comparable position at university or institute of higher education to conduct research; or
3. Must be recognized internationally as outstanding in a specific academic area. Evidence that the professor or researcher is recognized internationally as outstanding in the academic field must include at least two of the following:
(a) Receipt of major prizes or awards for outstanding achievement.
(b) Membership in an association, which requires outstanding achievement.
(c) Published material in professional publications written by others about the applicant’s work.
(d) Evidence of the person’s participation as a judge of the work of others.
(e) Evidence of original scientific research.
(f) Authorship of scholarly books or articles in the field.
To summarize, the national interest waiver offers a benefit to both the United States in that it allows our country to retain the best and brightest researchers from around the world and also allows for researchers to petition without the assistance of the employer as often times Universities and hospitals are slow to petition.