Visa Lawyer Blog

Articles Posted in National Interest Waiver

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On September 9th the Department of State and USCIS jointly announced new procedures that will allow family-based and employment-based applicants stuck in immigrant visa backlogs to apply for an immigrant visa (adjustment of status) before their priority date becomes current and an immigrant visa becomes immediately available to them. These new procedures will be implemented beginning October 1, 2015 as part of President Barack Obama’s executive actions on immigration with the purpose of modernizing and streamlining our legal immigration system for the 21st century. These new changes were introduced in the October Visa Bulletin. 

What is the Visa Bulletin?

The Department of State publishes a monthly report of visa availability known as the ‘Visa Bulletin.’ The Visa Bulletin is essentially a guide to be used by applicants and consular officials denoting visa availability for the issuance of visas at consulates and embassies worldwide. USCIS utilizes the Visa Bulletin to determine whether Form I-485, Application to Register Permanent Residence or Adjust Status, can be accepted for filing and processing. In order to file Form I-485 a prospective immigrant must determine whether a visa is available to them at the time the Form I-485 is filed and at the time Form I-485 is approved. The Department of State and Department of Homeland Security work together to revise the Visa Bulletin on a monthly basis estimating immigrant visa availability for prospective adjustment of status applicants. The DOS allocates available visas by providing visa numbers according to the prospective immigrant’s preference category, country of birth and priority date. This allows distribution of visas for all preference categories. A prospective immigrant’s priority date can be found on Form I-797 Notice of Action or ‘Receipt Notice’ for the petition filed on the applicant’s behalf.

What is a Priority Date?

A priority date is generally defined as the “date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS.”  For employment-based petitions, “if a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.”

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imagePresident Obama closed off the year by announcing his highly anticipated executive action on November 20, 2014 which will go into effect early this year, but the executive action was only one of many important initiatives that occurred in 2014.

2014 was a big year for immigrants for several reasons:

  • AB 60 California Driver’s License Applicants: Beginning January 01, 2015 undocumented immigrants can start the process of obtaining their driver’s licenses under AB 60 at their local DMV field office
  • Executive Action: Beginning February 2015, eligible applicants can apply for the expanded DACA program which shields undocumented individuals from deportation who were brought to the United States illegally as children, our office will be providing you with further updates early this year
  • Beginning May 2015 eligible parents of U.S. Citizens and lawful permanent residents can apply for deferred action thereby protecting them for deportation and allowing millions of parents to be eligible for employment authorization

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President Obama’s executive action announced on November 20, 2014 fell short in many ways than one for many people residing in the United States—both legally and illegally. Though a marginalized few have been allowed to come out of the shadows, some of the world’s best and brightest have been completely ignored by the executive action altogether. The United States would be quite a different place without our hard working immigrant population and without our foreign born innovators, movers, and shakers.

Obama’s announcement on November 20th notably left out any indication that the creation of a more expedient and efficient system would be considered— through which highly skilled and highly capable foreign workers would be able to more easily attain permanent residency and visas. Industry leaders in areas such as the Silicon Valley, seeking to employ such highly skilled and highly capable foreign workers for their startup companies, have expressed their concerns, forming groups such as FWD.us, albeit with the knowledge that Congress must act in order for an all-encompassing solution to be reached.

Though Obama’s speech shed little light on the topic, a memorandum released by the U.S. Department of Homeland Security following the speech is much more informative. The memorandum announces that inventors, researchers, and founders of start-up enterprises who do not qualify for a national interest waiver, but who have been awarded what is considered ‘substantial’ financing by a U.S. investor OR who ‘hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research’ can attain parole authority under section 212(d)(5) of the INA,6 on a case-by-case basis after being assessed by the DHS. Possessing parole in this situation would authorize extraordinary inventors, researchers, or start-up entrepreneurs to temporarily conduct their research or development of innovative ideas or their business while in the United States.

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Until 2011, the National Interest Waiver (NIW) category had been limited to persons holding advanced degrees or persons of extraordinary ability in the arts, sciences, or business whose work was in the national interest. In 2011, the NIW category was expanded to allow entrepreneurs to pursue a green card based on demonstrating the business and their services within that business being in the national interest.

Recently, our firm succeeded in approving an entrepreneur as someone whose work was in the national interest because their exceptional abilities as an individual and the business’ substantial prospective benefit to the U.S. warranted approval for their case. The entrepreneur’s business was in the field of private security, focusing on providing security to American interests in countries where terrorism and insurgents threaten our interests abroad. By demonstrating that the business is focused on fighting against organizations such as Al-Qaeda, the national interest is served by showing how the welfare of the U.S. is protected by the company’s services.

When it came to the entrepreneur’s exceptional abilities, a six factor test is used to determine if the entrepreneur qualifies for his services being in the national interest. Of those six factors, only three must be met. The six factors are: (1) a degree, diploma, certificate, or similar award from a college, university, or other institution of learning related to the area of exceptional ability; (2) letter/s from current and/or former employer/s establishing that the beneficiary possesses at least ten years of full-time experience in the occupation for which s/he is being sought; (3) a license to practice the profession or certification for a particular profession or occupation; (4) evidence that the beneficiary has commanded a salary, or other remuneration, which demonstrates exceptional ability; (5) membership in professional associations; or (6) recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

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Written by Ekaterina Powell

Our office has extensive experience working on EB-2 National Interest Waiver petitions for scientists and researchers in a variety of academic fields. Many clients come to us after their NIW petitions have already been denied as a result of their first attempts to file the petitions without qualified attorney guidance.

Unfortunately, often times after careful review of the petitions it becomes clear that the scientist is qualified for NIW but the petition was done in such a way that it did not properly highlight the scientist’s accomplishments and did not articulate how the scientist meets the criteria for NIW petition.

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We get a lot of inquiries from individuals interested in applying for green card through EB-2 National Interest Waiver (NIW) category. Attorney Ekaterina Powell from our office has prepared this summary of important considerations when filing EB-2 NIW application.

You may be eligible for an employment-based, second preference green card, if you are a member of the professions holding an advanced degree or its equivalent, or if you have exceptional ability. Normally, an employer must petition for its employees, and each EB-2 petition must be accompanied by an approved individual labor certification from the Department of Labor, which takes a lot of time and effort to obtain.

Instead of going through Labor Certification route, qualified applicants may submit National Interest Waiver request with their EB-2 petition without going through the Department of Labor stages. Qualified applicants may self-petition and do not need an employer to sponsor them for EB-2 category with National Interest Waiver.

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