National Interest Waivers
|Overview||NIW option for Physicians|
|Application Process||NIW Green Card for Physicians|
National Interest Waivers fall in the employment based immigration second preference EB-2 category. Under normal conditions, labor certification is required in EB-2 visa cases, in which the U.S. employer must show that there are no qualified U.S. employees to fill the position offered. In the case of a National Interest Waivers, the labor certification process is waived, if it is in the best interest of the United States. National Interest Waivers are most commonly granted to those than can prove that they have exceptional ability, and that their employment in the United States will greatly benefit the U.S. economy. In the application process, the alien must show that they have exceptional ability in a field that can substantially benefit the nation and its people. National Interest Waivers are most commonly granted to prominent researchers and professors whose work has great social and economic potential for citizens of the United States. The applicant must show that if labor certification were required, the United States would suffer a loss that could otherwise be prevented if labor certification were waived.
Applicants that wish to obtain a national interest waiver are able to self-petition themselves for the EB-2 visa and do not need an employer to sponsor them. EB-2 applicants obtaining a National Interest Waiver are able to file Form I-140 Petition for Alien Worker, on their own behalf. Since EB-2 National Interest Waiver petitions do not require a job offer, university professors that do not possess a tenure track position may self-petition themselves for a National Interest Waiver petition. This provides a great U.S. visa option for non-tenure track professors. National Interest Waivers have become increasingly more difficult to obtain since 1998. An attorney may represent your EB-2 National Interest Waiver case, and careful review of your application by an attorney may increase your chances of approval.
At the time of filing your I-140 petition, you may directly file your Form I-485, Application to Register Permanent Residence or Adjust Status, thus applicants that can avoid the labor certification process by obtaining a National Interest Waiver may quickly obtain a green card. Those that are born in mainland-China or India, as well as physicians applying for National Interest Waivers, are unable to submit Form I-485 at the same time of filing Form I-140.
Three requirements must be met in order to qualify for the national interest waiver.
1. The proposed employment must be of a substantial intrinsic merit, or work that substantially furthers a national goal.
2. The proposed benefit to the economy must be national in scope, and benefit the nation as a whole.
3.The national interest would be adversely affected if the labor certification requirement were to be required. This means that the national benefit of the proposed work is so significant that it clearly outweighs the important public interest in maintaining certain minimum wage and employment standards, through requirement of Labor Certification.
Physicians applying for EB-2 visas may obtain a National Interest Waiver. In order to qualify, the physician must commonly show that they will work in an underserved area in the United States, for a period of 5 years.
Physicians may obtain a National Interest Waiver if they meet the Following Eligibility Requirements:
- Physicians must provide evidence that they will obtain a full-time position in clinical practice, and provide their services for at least 5 years
- Physicians must either work in primary care, or work as a specialty physician. Primary care includes family practitioners, general practitioners, pediatricians, internists, obstetricians/gynecologists, and psychiatrists
- Physicians applying for National interest waivers must practice in one of the following areas: designated Health Professional Shortage Areas (HPSA), Medically Underserved Areas (MUA), Physician Scarcity Areas (PSA-in the case of specialists), Mental Health Professional Area (MHPSA-for psychiatrists), or Veterans Affairs facilities
- Attestation-in the form of a statement from a federal agency or state department of health, confirming that you have the appropriate qualifications to practice in your field, including academic degrees and accomplishments in your field
Physicians may apply for a green card by filing Form I-485, Application to Register Permanent Residence or Adjust Status. Physicians must provide evidence that they have served for a period of 5 years in the region indicated in their initial application. In some cases, 3 years will suffice. In addition, the applicant must file Form I-485 no more than 120 days after they have completed their 3-5 year service requirement.
In addition to providing evidence of service, a physician must include the following documentation when applying for a green card (permanent residence).
- A copy of Form I-797, the approval notice of your I-140
- An approved copy of Form I-612, Application for Waiver of Foreign Residence Requirement, in which foreign residence requirements are waived
- A copy of Form G-325A (Biographic Information)
- A copy of any I-797 approval notices, if you have extended your stay or changed status
- A copy of Form I-20 or IAP 66 school records
- 2 passport-style color photos
- A complete copy of your passport, including any previous visas
- A complete copy of your birth certificate
- Completed Form I-692, Medical Examination and Vaccination Record
- The I-485 application fee of $985 USD and $85 biometric fee, totaling in $1070 USD
- If you have an attorney representing you, then Form G-28 should be included
What is an advanced degree for NIW purposes?
According to the USCIS, an advanced degree is that above that of a U.S. bachelor’s degree or its foreign equivalent. Advanced degrees include but are not limited masters and doctoral degrees. A bachelor’s degree or its foreign equivalent along with at least five years of experience in a specialty occupation is considered equivalent to a master’s degree.
To qualify for an EB-2 NIW, do I need to be an Alien of Exceptional Ability and an advanced degree holder?
No. National Interest Waiver applicants either need to be an Advanced Degree Professional or an Alien of Exceptional Ability, not both.
Is labor certification required for NIW cases?
No. A PERM labor certification is required for all EB-2 beneficiaries, except for those whose work is deemed in the “national interest”, where the proposed employment prospectively benefits the U.S. economy, with respect to wages, working conditions, education, housing, healthcare, and the environment. EB-2 national interest waiver petitions do not require a job offer, thus university professors without a tenure track job offer may self-petition a NIW petition. A letter in support of the NIW provided by an interested government agency can significantly strengthen the visa case.
How do National Interest Waiver applicants prove that their prospective work in the United States is of national interest?
National Interest Waiver applicants should be able to show a track record of work that was in their nation’s best interest. Thus, NIW applicants must establish that their presence in the United States would benefit the national interest. Applications should include publications, letters of recommendations, a list of past achievements, any licenses and certification to practice a profession or occupation, and letters from current and previous employers.
Can Ph.D. students qualify for national interest waivers?
If the Ph.D. student holds a master’s degree or its foreign equivalent, he or she may apply for a national interest waiver.
Do I need to reside in the U.S. to apply for a National Interest Waiver?
No. You do not need to reside within the United States when applying for a National Interest Waiver.
How many letters of recommendation are required for NIW cases?
There is no required number of letters of recommendation for national interest waiver cases. The stronger the letter of recommendation and the more qualified the applicant, the better you will be able to substantiate that it is in the national interest to waive the labor certification requirement.
As a professor or researcher, how many published articles are needed to be considered for a national interest waiver?
Publications are not necessary for National Interest Waiver petitions; however, publications will help substantiate your case.
My publications are not cited. May I still apply for a National Interest Waiver?
Yes. Showing that your work has been cited by others in your field will establish that you are respected in your profession; however, this is not required. It is generally not enough to show that you have published work; but more importantly, you should be able to show how your work or research has impacted your field of study.
I was denied labor certification. May I still apply for a National Interest Waiver?
Yes. If you meet the qualifications of a NIW case, you may apply for a national interest waiver. In many instances, although there may be U.S. workers who are qualified for the NIW applicant’s position of interest, the NIW applicant’s ability may greatly surpass that of available U.S. workers, and therefore it would be in the national interest to waive labor certification and allow the NIW applicant to fulfill such a position.
Must I receive an employment or job offer to be eligible for a national interest waiver?
No. Since there is no job offer requirement in National Interest Waiver cases, you may apply without an employment offer.
What is the normal processing time for National Interest Waiver cases?
National Interest Waiver cases will normally be approved between six months to a year, by the USCIS.
Can National Interest Waiver cases be expedited?
Yes, EB-2 national interest waiver petitions may be expedited with USCIS Premium Processing.
What is the NYSDOT case, and how does it relate to national interest waivers?
The New York State Department of Transportation filed a national interest waiver petition for a civil engineer from India. Although the NYSDOT was able to provide the USCIS with testimonials, the case was denied. This landmark case established that the NIW beneficiary’s occupation is not enough substantiate a NIW claim. Thus, since the National Interest Waiver applicant was unable to show that beneficiary’s skills greatly surpassed that of U.S. workers with the same minimum qualifications, labor certification could not be waived on the grounds that in was in the national interest. Thus in NIW applications, the petitioner has the burden of proof to prove that labor certification, a process that protects the interests of U.S. workers, be waived.
Since the 1998 case of “Matter of New York State Department of Transportation”, wherein the court applied a new higher standard for beneficiaries, similar to that of extraordinary ability, national interest waivers have become increasingly more difficult to gain approval
How much are your attorneys fees for preparing a national interest waiver case?
Our law office charges $2,250 initially as a retainer fee, and another $2,250 upon approval of the case, for a total of $4,500. This does not include fees which must be paid by the applicant to the government.
Written by:Mark Carmel