National Interest Waivers (NIW) as a Path to Green Card for Scientists and Researchers

INTRODUCTION

This article discusses one method/strategy for professionals in the science and research fields to become a U.S. permanent resident without an employer or sponsor. This is an option for science professionals who have established a solid reputation in their respective fields but may not yet be recognized as the top or primary authority in a particular area of study.

Traditionally, to obtain U.S. permanent residence, a foreign national has to be sponsored by an employer or family member. With an employer-sponsor, the employer is responsible for obtaining a labor certification which shows that there are no American workers who could fulfill the desired position. However, under the Immigration & Nationality Act (INA), a foreign national can self-petition without an employer-sponsor in two instances.

The first is as an EB-1 "Alien of Extraordinary Ability". This category is typically reserved for individuals at the very top of their field of expertise. A scientist or researcher may qualify for this category, and he/she should discuss this option with an immigration attorney.

The second instance is as an EB-2 "Alien of Exceptional Ability"/"Professional Holding an Advanced Degree" who is granted a National Interest Waiver (NIW). Under INA Sec. 203(b)(2)(A), the labor certification process which is normally required may be waived, if it can be demonstrated that it would be in the "national interest" to do so. Thus, if a foreign national can show that their work will be beneficial to the U.S., they may self-petition to gain permanent residence.

FOUNDATIONAL BASICS

Before USCIS can determine if a NIW is appropriate, the agency must first determine if the foreign national is either an "Alien of Exceptional Ability" or a "Professional Holding an Advanced Degree."

Exceptional ability in the sciences is defined as having a degree of expertise significantly above that normally found within the field, meaning an individual is above many others in his/her field but not necessarily be at the top. This is demonstrated through documentation of certain evidence including:

- Official academic record showing the foreign national's degree, diploma, certificate, or similar award from an institution of learning related to the field of exceptional ability;

- Letters from current or former employers showing at least 10 years of full-time experience in the occupation sought;

- A license or certification to practice the profession;

- Evidence of a high salary compared to others in the field;

- Memberships in professional associations; and

- Evidence of achievements or significant contributions to the industry

To be recognized as a professional holding an advanced degree, a foreign national has to demonstrate that: (1) he/she holds a U.S. Masters Degree (or its foreign equivalent) or a U.S. Bachelors Degree (or its foreign equivalent) plus five years of progressive experience in the field; and (2) the profession that he/she is seeking requires an advanced degree. This can demonstrated through official academic records, equivalency evaluations, and letters of support from past and current employers.

NIW STEPS AND DOCUMENTS TO GATHER

Once it is determined that a foreign national meets the criteria for either an "Alien of Exceptional Ability" or "Professional Holding an Advanced Degree," USCIS will evaluate whether a Petitioner qualifies for a NIW. USCIS may grant a national interest waiver if the Petitioner demonstrates:

(1) that the foreign national's proposed endeavor has both substantial merit and national importance;

(2) that the foreign national is well positioned to advance the proposed endeavor; and

(3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

By gathering certain evidence, a scientist or researcher can easily meet these criteria with the assistance of an immigration attorney. Here are some tips that can help:

- Define Your Field and Goals: A major component of the NIW process is demonstrating the importance of your field of study and your contributions to it. You should be able to clearly and easily describe the field you work in and what your proposed work in the field would look like. For example, as a neuroscientist working with stroke patients you should talk about how the tools your current lab is using to measure cognitive ability has brought greater understanding to the field. Then you should be able to talk about how you would elaborate on those methods and their potential for use with brain-damage patients. All of this should be in plain-English and easily explained.

- Collect and Catalog Publications that You've Worked On: Most research facilities produce publications about their ongoing studies. You should collect copies of all publications that you have either authored, edited, or merely contributed to (including the underlying science) and maintain a single document listing them all along with your role and past duties. Any publications which are not in English should have at least the titles and abstracts translated.

- Collect and Catalog Articles About Studies You've Worked On: Often times non-academic or non-science publications will write articles about new and exciting developments in the science field. Even if these articles don't mention you by name, this is an easy way to show how your research efforts can provide benefit to the field. For example, if you helped develop a more sensitive test for detecting insulin abnormalities ten years ago which was only recently approved by the FDA, an article or news report discussing this will help an USCIS official understand your field and its benefit.

- Maintain a List of all Studies You've Worked On: This may seem obvious, but you should always have an on-going list of the different research projects you've worked on. This list should include the scope of the study, your role and duties in it, and the ultimate impact/result of the study. Labs can often run multiple studies and trials simultaneously, so keeping track of what you're working on and its real-world relevance can only help your case.

- Make and Keep Good Relations with Others in the Field: While your research may be extremely relevant and beneficial, having letters of support from others in the field that back-up your claim can make a huge difference. You should be sure to have a solid group of co-workers, peers, and heads of labs that you can contact for this type of support. By maintaining this network you increase your chances of having someone available to back the claims in your petition.

The above are just some things to consider and not all of it will be relevant. You should always consult and discuss with an attorney to determine the best strategy and course of action for your particular case.

APPLICATION PROCESS

This article does not supply a complete guide to the application process, but gives a brief overview. How and when you submit petition will depend on your current status and whether you are currently inside or outside of the U.S. Generally, obtaining permanent residence involves two components: the underlying petition and the application for a Green Card.

The underlying petition and the necessary criteria which must be met are discussed above. If a foreign national is already in-status in the U.S. and not subject to any prohibitions or bars to admissibility, then he/she can simultaneously file for a Green Card at the same time as the underlying petition. If a foreign national is outside of the U.S., then he/she must wait for a decision on the underlying petition before obtaining his/her Green Card through consular processing.

There are many factors to be taken into consideration when applying for permanent residence in the U.S. You should work with a qualified immigration attorney before pursuing an EB-2 NIW petition. While your knowledge of the basics and your cooperation in compiling and organizing the documents can be very helpful, the application process demands a great deal of paperwork and attention to detail. Your attorney is in the best position to help you persuade the government that you meet the necessary criteria and to make sure that other factors will not affect your options.