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Employment Green Cards And The PERM Labor Certification Process

Navigate The National Interest Waiver Process With The Help Of An Attorney

Are you looking for a way to obtain a green card so you can stay and work in the U.S. on a more permanent basis? There are many types of employment-based immigrant visas, and likely, you are familiar with the most widely known ones, the employer-sponsored EB-2 and EB-3 visas. But have you ever considered obtaining a green card through the National Interest Waiver petition?

What Is A National Interest Waiver Petition?

A National Interest Waiver (NIW) petition falls under the employment-based immigration, second preference (EB2) category. Thus, in order to be eligible, you must have either an advanced degree (or in the alternative, a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive experience in the applicant’s profession) or have “exceptional ability” in the sciences, arts or business that will “substantially benefit prospectively the national economy, cultural or educational interests, or welfare” of the United States.

Normally, a permanent job offer and an approved labor certification are prerequisites to filing an immigration petition under this classification. An NIW petition, however, requests that the Labor Certification requirement be waived for the sake of the “national interest of the United States,” thus, allowing an applicant to apply for an NIW immigration petition without a labor certification or a job offer from a U.S. employer. This means you may file the petition on your own (called “self-petitioning”). Alternatively, a U.S. employer may file on your behalf.

What Are The Requirements For A National Interest Waiver?

The requirements that you must satisfy are set forth in the precedent decision, Matter of Dhanasar, issued by the Administrative Appeals Office (AAO) in 2016. (Note that this case vacates the previous NYSDOT three-prong test that had been used by USCIS for adjudicating National Interest Waiver cases.) In the Matter of Dhanasar, the AAO sets forth a new three-prong test that replaces the previous NYSDOT test. It has a more flexible standard than NYSDOT and is intended to make the waiver more broadly available to foreign national pursuing endeavors that benefit the United States, including entrepreneurial ventures. Specifically, to be eligible for an NIW, you must be able to demonstrate the following:

  1. Your proposed endeavor has both substantial merit and national importance.
  2. You are well-positioned to advance the proposed endeavor.
  3. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

How Do I Show That I Meet The Requirements?

To meet the criteria set forth in the Matter of Dhanasar, the AAO decision has provided the following guidelines:

  1. Your proposed endeavor has both substantial merit and national importance: A wide range of fields of endeavor may qualify, including business, entrepreneurialism, science, technology, culture, health or education. The petitioner is not required to show that the endeavor will bring immediate or quantifiable economic benefit to the United States, though evidence to show the endeavor’s potential to create significant economic impact may be a favorable factor. The petitioner must show that the foreign national’s proposed endeavor has “national importance,” which may include local or regional endeavors. For example, an endeavor that has potential to employ U.S. workers or has other positive economic effects, particularly in an economically depressed area, may have national importance.
  1. The foreign national is well-positioned to advance the proposed endeavor. To determine whether the petitioner meets this prong, USCIS will consider an individual’s education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor and the interest of potential customers, users, investors or other relevant entities or individuals. Significantly, the petitioner is not required to show that the endeavor is more likely than not to ultimately succeed so long as they can establish that they are well-positioned to advance the proposed endeavor.
  1. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. To meet this prong, USCIS will evaluate factors such as whether in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

Note that spouse and minor children may accompany you, the principal, and receive permanent resident status.

Initial Consultations Available. Get Yours Today.

The National Interest Waiver (NIW) petition is complex. Not only is the required support documentation exhaustive, but the legal three-prong test is hard to meet without a more in-depth understanding of the legal analysis of the law. An NIW lawyer can help ensure that your case meets the legal criteria. Furthermore, having all the right documentation alone is not enough. You have to organize and present it in the best way possible, and an experienced San Jose EB-2 visa attorney will be able to ensure that everything is presented in such a manner that makes it easier for USCIS to review and approve the petition.

If you think you might qualify for an NIW, contact our law office online or by telephone at 408-389-4764 and speak with our immigration lawyer to get expert assistance on the preparation of your petition.