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Seattle Attorney Wasser Speaks on National Interest Waivers at NW AILA Conference

I had the pleasure and honor to speak on a panel about EB-1 and EB-2 permanent residence categories at the annual Northwest American Immigration Lawyers Association Conference held in Portland on February 20-21, 2014. My co-panelist, Matthew McClellan from Oregon, covered the three main subcategories in the employment based First Preference (EB-1): “extraordinary ability” foreign nationals, outstanding researchers and professors, and multinational managers and executives. I covered EB-2 PERM-based advanced degree and exceptional ability categories, as well as National Interest Waivers for advanced degree professionals and those of “exceptional ability”, plus Schedule A, Group I physical therapists and Schedule A Group II exceptional ability immigrants in the arts and sciences.

Of particular interest and enjoyment to me is working on National Interest Waiver (NIW) cases. NIW means the government will waive the usual requirement that there be a US employer, job offer, and labor market test for “willing, able and qualified US workers”. (Note that for NIW cases, although a US employer and job offer is not required, the applicant must show he/she has offers of work in the US in the field of endeavor at issue. One cannot simply meet the criteria but not plan to work in the field of endeavor.)

Congress never specified what the requirements are to meet the NIW standard, and USCIS/legacy INS never implemented regulations to define NIW requirements. But, in a precedent decision, NY Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Comm. 1998), the Administrative Appeals Office laid out a three-part test that has been used ever since:

1. The field of endeavor or proposed work must be of “intrinsic merit.” Note, NIW cases are for work in the sciences, business and arts, all of which can be construed rather broadly.

2. Second, the work must be national in scope. This can be tricky where the work to be performed is strictly local or will have just local impact.

3. The third and hardest prong of the NYSDOT test is to show that it is in the national interest to waive the labor market test (labor certification or “PERM”). Stated otherwise, it is not in the national interest to require PERM because the applicant provides a “significant benefit to the field of endeavor”; has a “past history of demonstrable achievement with some degree of influence on the field as a whole;” and is likely to “serve the national interest to a greater extent than others with the same level of education, training and/or experience.”

In sum, the applicant’s past impact on the field of endeavor should be proven such that it is highly predictive the applicant will continue to make a future impact on the field. Further, it is not enough to show a shortage of workers in the field because that is what PERM is for – to test the US labor market. Nor is it enough to show the applicant has a unique set of skills. Indeed, it is important to show through experts or peers in the field that the person has made some significant contributions to the field such that he or she is likely to do so again in the future. Keep in mind that PERM is about finding applicants who meet the MINIMUM qualifications listed in the job opportunity. Here, we are focused on major or significant contributions already achieved. (By contrast, extraordinary ability workers and outstanding professors and researchers must show a higher level of achievement: original contributions to the field or international achievements.)

If the NIW standards can be met, it applies to individuals in the professions with at least advanced degrees (masters or higher depending upon the field) OR to those who are of “exceptional ability.” A person is of exceptional ability if the applicant can prove “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.” Further, persons of exceptional ability must show they will “substantially benefit prospectively the national economy, cultural or educational interests or welfare of the USA.”

This standard would be in addition to the third prong for the NIW noted above. To prove exceptional ability, the applicant must show at least three of the following criteria:

– Academic records related to the field of exceptional ability – At least 10 years of full time experience in the occupation for which the foreign national is being sought – License to practice the profession if required – Salary/remuneration demonstrating exceptional ability – Membership in professional associations – Recognition for achievements and significant contributions to the industry or field – Other comparable evidence

In its analysis of exceptional ability, USCIS conducts a controversial two-step analysis based on a 9th Circuit Court of Appeals case, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). (By controversial, I mean the legal community disagrees with USCIS’ interpretation of the court’s ruling in Kazarian.) First, USCIS looks to see if the applicant has provided credible evidence to meet the “preponderance of the evidence” standard showing at least three of the criteria above. Even if the applicant has met the minimum criteria, USCIS then looks at the case as a whole to determine whether overall, the person has shown he or she has the requisite “degree of expertise significantly above that ordinarily encountered.” This same two-step analysis is also performed by USCIS in the EB-1 Extraordinary Ability and Outstanding Researcher categories.

The EB-2 NIW category is especially good for those accomplished individuals in the arts, sciences and business who do not have traditional work arrangements, who do not have employers willing or able to sponsor them, but they do have work lined up in the field of endeavor, and where the applicant has impacted the field in some way. In addition, the work must have some impact beyond the locality where the work is performed. Looking at the broader range of people or businesses that have been impacted directly or indirectly may be possible. For example, in its efforts to reach out to entrepreneurs within the confines of narrow visa requirements (because Congress refuses to upgrade our laws for the modern economy), USCIS came out with FAQs for entrepreneurs suggesting that job creation beyond the self-petitioner’s own business might be considered:

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

These cases are very, very fact specific. Therefore, potential applicants should consider meeting with an immigration attorney with NIW experience to determine whether there is a good chance of having the case granted. Keep in mind, however, that Requests for Evidence and even denials are common in the “reputation” green card and visa categories. Winning depends upon having good facts and creative advocacy, a willingness to work hard and lots of patience. One of the key sticky areas for USCIS involves peer letters. USCIS gives less weight to those written by co-workers, employers or other colleagues, and will give more weight to those letters from unbiased professionals with whom the applicant has not worked. We work with our clients to find the right peer reviewers or experts. It all starts with preparing a good portfolio of work. A long resume alone will not suffice.