Guest Author
By Nam Douglass
Are you a foreign national with an advanced STEM degree? Are you working, or have you worked, in a STEM-related field? If so, then applying for a self-petition green card via the employment-based second preference (EB-2) “National Interest Waiver” category may be an option for you.
The wait for an employment-based green card is a hurdle for all foreign workers. Indian nationals in particular face significant challenges due to the lengthy PERM process, per-country limits on green cards, and priority date backlogs. The PERM process, the most common path to securing an employment-based green card which requires obtaining a labor certification to demonstrate that no qualified U.S. workers are available for the position, can now take almost two years due to extended processing times by the U.S. Department of Labor. After the PERM is certified, then the employer files the I-140 petition with immigration to complete step two in the process.
Once the PERM and the I-140 petition are approved, foreign nationals must then wait for their priority date – their place in line – to become current before they can apply for their green card. Consequently, Indian nationals wait several years, or even decades, for their priority date to become current, causing prolonged uncertainty and impacting their careers and personal lives.
Additionally, as this PERM process is employer dependent, changes in your work location or in the labor market, such as industry layoffs, can result in having to start the process again from the beginning.
The National Interest Wavier is one of only two options to self-petition for a green card.
For decades, National Interest Waivers (NIWs) have been available to foreign nationals with an “exceptional ability” or who hold an advanced degree (or its equivalent). However, in 2022, the Biden administration introduced new guidance that emphasized NIW eligibility for those individuals with STEM degrees and working in STEM fields, recognizing this an “especially positive factor.”
This updated guidance provides the opportunity to speed up the pathway to permanent residency, and ultimately citizenship, for many. Immigration attorneys have had success with filing National Interest Waivers for foreign nationals in Artificial Intelligence (AI), computer science, pharmaceutical and foreign language instruction fields, as well as many others.
Benefits of the National Interest Waiver
The most important benefit to applying for a green card via a National Interest Waiver is that you can self-petition. This means that you do not need an employer or an offer of full-time employment to start your green card process, if you plan to work in your STEM field in the U.S.
Second, the National Interest Waiver also allows you to skip the PERM Labor Certification, the two-year long step where an employer must “test” the labor market to certify that there are no able, willing, available and qualified U.S. workers for an offered job. As a result, you can secure your priority date – your place in line for a green card much faster.
Eligibility Criteria for a National Interest Waiver
Having an advanced degree in a STEM field is not the only requirement for the National Interest Wavier. You must also show that your employment will “benefit the national economy, cultural or educational interests, or welfare of the (country) in the future” more than other qualified US workers.
To do this you must establish that you meet the following three-prongs:
● Your proposed endeavor has both substantial merit and national importance;
● You are well positioned to advance the proposed endeavor; and
● On balance, it would be beneficial to the United States to waive the job offer and the permanent labor certification requirements.
The guidance from the Biden administration in 2022 clarified that the NIW is no longer just for individuals with publications or patents or extensive research.
Those with an advanced degree and a track record of success in their field of experience may have enough expertise to apply.
You should consult with an experienced immigration attorney to learn more about the process and discuss eligibility if you are interested in applying for a National Interest Waiver.
Nam Douglass is a Senior Associate Attorney, N.C. Board Certified Immigration Law Specialist with Garfinkel Immigration Law Firm. Contact: nam.douglass@garfinkelimmigration.com
