Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I have many years of experience doing the work that I do and I’m very good at it. However, I do not want to wait years for a PERM visa number to be available. Are there any other options for getting a green card employment based visa?

Answer: Actionally there is another option for getting a green card employment based visa. It is called a National Interest Waiver. In these types of cases known as EB-2 cases, the employer offering the foreign national employment must file the preference petition on Form I-140, except when the alien is seeking an exemption from the job offer requirement, in which case the the foreign national or any person on his or her behalf may file the petition. To be exempt from the job offer requirement, the USCIS must determine that an exemption would be in the national interest. Hence the name ‘national interest waiver’ as a way of getting a green card employment based visa. A labor certification or PERM is not required if the job offer requirement is waived. In 1998, the government designated its first precedent decision discussing the standards governing national interest waiver requests. The case which was decided NYSDOT did make it quite difficult to get a National Interest Waiver for getting a green card employment based visa approved. The decision established stricter standards for obtaining national interest waivers than those applicable in the past. Getting a green card employment based visa meant for many having to wait years for the visa number to become current. For years, the government had declined to issue a comprehensive and controlling definition of national interest and instead had advised the Service Centers to treat petitions involving national interest waiver requests on a case-by-case basis. This made it difficult for attorneys to prepare the national interest waiver. It made it necessary to look at all options for getting a green card employment based visa. The Administrative Appeals Office (AAO) had issued several non-binding decisions after enactment of the national interest program that elaborated on the applicable standard. The AAO took the position that the alien’s admission must provide a benefit to the country beyond a “prospective national benefit” which all exceptional ability and advanced-degree aliens must establish prior to their admission. In the years immediately after the enactment of the national interest waiver provision, the legacy INS had granted such waivers with some frequency relying in part on these early AAO decisions. In more recent years, however, the Service Centers began applying a more exacting standard to such requests requiring petitioners to establish, for example, that the alien possesses unique knowledge, abilities, or experience that set him or her apart from others in the field. The 1998 precedent decision continued this trend. Under the standards, it is critical that the National Interest Waiver be prepared with an abundance of evidence and exacting arguments to try to get the case approved. If successful, years of waiting time will be avoided.

Question: What must be established to get a National Interest Waiver so that other options for getting a green card employment based visa need not be considered?

Answer: The AAO held that the three factors must be considered when evaluating a request for a national interest waiver. First, the petitioner must establish that the alien’s proposed employment is in an area of substantial intrinsic merit. The importance of the occupation or the field of endeavor must be established as a threshold requirement. If a particular field of endeavor is related to an important national goal, this requirement should not be difficult to meet. If this is met you will not need to see what other options exist for getting a green card employment based visa. Eligibility for a national interest waiver is not established, however, solely by a showing that the alien’s field of endeavor has intrinsic merit. Blanket waivers for national interest waivers do not exist. Each must be approved seperately.

Second, the national interest waiver must be shown that the proposed benefit will be national in scope. If this can be shown, then getting theis type of green car employment based visa becomes much easier. The emphasis of this factor is on the existence of a national goal that the alien’s proposed undertaking will promote. Merely serving a regional, local, or private interest is not sufficient. The correlation between the national goal and the alien’s activity need not be direct, however. For example, in the 1998 case, the beneficiary’s occupation-the proper maintenance and operation of New York’s bridges and roads connecting the state to the national transportation system-met this threshold. While the alien’s employment was limited to a particular geographic area, the AAO noted that New York’s bridges and roads connect the state to the national transportation system. The proper maintenance and operation of these bridges and roads therefore serve the interests of other regions of the country.

Finally, it must be established that the “significant” benefit derived from this particular alien’s participation in the “national interest” field of endeavor “considerably” outweighs the “inherent” national interest in protecting U.S. workers through the labor certification process. This would be the key in getting the national interest waiver for this type of green card employment based visa. This standard sets up a balancing of interests, with the national interest in the labor certification process weighing in on one side as a strong adverse factor in granting the national interest waiver.

Thus, to get the national interest waiver is not easy. However, when you weigh putting together a good petition with a chance of success verses waiting years for other types of green card employment based visas, it is a good alternative to try to obtain residency.

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Law Offices of Brian D. Lerner, APC

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