Foreign scientists need more than grant money to secure their future in the United States: They need lawful permanent residence, also known as a "green card." In our last article we described the process of applying for a green card under the "Extraordinary Ability in the Sciences" category, a route reserved for scientists who have reached the very top of their fields. In this article, we discuss an option for foreign-national scientists who are exceptionally talented but may not be among the very best: the "National Interest Waiver." Like the "Extraordinary Abilities" approach, a national interest waiver does not require employer sponsorship.

After succeeding in his quest for a green card under the aliens with extraordinary abilities act, our last successful client, Lei, a chemical engineer with a Ph.D. from China, extolled to his colleagues the virtues of obtaining permanent residence without the trials and anxieties of the labor certification or the requirement of continued employer sponsorship.

Lei's enthusiasm led us to be introduced to another scientist, Samira. Although she was not the recipient of any major national or international awards, she was nonetheless highly respected in the biomedical sciences. Samira specialized in the development of novel therapies for the prevention of restinosis--the renarrowing of coronary arteries, after angioplasty.

Samira was employed on an H-1B visa as a temporary worker in a prominent biomedical company with an international reputation. Before joining the company, Samira had been a J-1 exchange scholar for 5 years and had worked as a research scientist (both pre- and postdoctoral) in the laboratory of a prominent professor. One of her research findings, she told us, had sparked particularly strong interest within the scientific community and resulted in a grant from the National Institutes of Health (NIH) and numerous requests for reprints. Samira also told us that new drug therapies were now being developed as a result of this research.

If her current employer were willing to sponsor her, Samira would be a strong candidate for a green card under the "Outstanding Researcher" category. Although it requires employer sponsorship, the Outstanding Researcher application avoids the often unwieldy labor-certification process. But because her company had a policy of not sponsoring employees for permanent residence and because she wished to keep her future employment options open, she needed to explore other possibilities.

National Interest Waiver Eligibility

A National Interest Waiver (NIW) bypasses the ponderous labor-certification process and is available to individuals "... who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States." 1

The advanced-degree requirement can be met by a Ph.D., a master's degree, or a bachelor's degree and 5 or more years of progressive experience in a specialty. In addition to an advanced degree or its equivalent, professionals seeking an NIW must document a level of expertise in their field that is substantially above that of peers within the same field. An individual who does not have an advanced degree or its equivalent can utilize the "exceptional ability" qualification if they meet at least three of the following criteria:

i. a degree, diploma, or certificate in the field relating to the area of exceptional ability;

ii. ten or more years of full-time experience in the occupation;

iii. licensure or certification to practice in the profession;

iv. high salary for services in the field;

v. membership in professional societies or associations;

vi. recognition by peers, governmental entities, or professional or business organizations for achievements and significant contributions to the field; or

vii. other "comparable evidence ... to establish eligibility." 2

NIW petitioners must also demonstrate that their continued work in the field will "substantially benefit prospectively" the United States, thus making the grant of the petition and waiver of the employment requirement "in the national interest."

Interpretation of "National Interest"

While there is no definitive statutory definition of "national interest," examiners at the Immigration and Naturalization Service (INS) generally look to see whether the foreign national's work will: (1) improve the U.S. economy; (2) improve wages and working conditions of U.S. workers; (3) improve education and training programs for children and underqualified workers; (4) improve health care; (5) provide more affordable housing; (6) improve the environment and make more productive use of natural resources; or (7) involve a U.S. governmental agency request.

A petitioner can and should argue as many relevant societal benefits of tangible national interest as can be argued persuasively. In Samira's case, we could point to several societal benefits for her research: improvement of health care, improvement of the U.S. economy by reducing health-care costs associated with heart disease, maintenance of a healthy and productive workforce, and the advancement of medical science in the treatment of other diseases.

Making the Case for the National Interest Waiver

A successful NIW applicant must satisfy a three-pronged test (in addition to the advanced-degree requirement) to be granted a waiver of the labor certification requirement and approval of the petition: 3

  • The applicant must work in an area that has "substantial intrinsic merit"--another way of saying that a reasonable person would agree that the work is important;

  • The work has applications of national scope;

  • The applicant's continued work in this area, by nature of his or her proven accomplishments and potential to make future contributions, justifies waiver of the labor certification requirement. (To put it another way, granting the waiver outweighs the inherent value of preserving job opportunities for U.S. workers.)

  • In Samira's case, "substantial intrinsic merit" was quite easy to establish. For most scientists, this should not be a concern.

    To satisfy the second prong, though, Samira needed to show that the benefit of her work would be national in scope. Because heart disease has no boundaries, the development of new therapies to reduce the incidence of heart disease would have a clear, positive, national impact. For scientists doing work with less obvious practical importance, it is critical to identify the significance of the application of the work not just to the particular field of science but also to broader areas of national interest such as improving a U.S. manufacturer's competitive edge in the world, enhancing the telecommunications infrastructure, improving transportation safety, or reducing reliance on foreign imports.

    The final prong of the NIW test is the demonstration that the applicant "will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications." 4 Implicit in this analysis is balancing the harm of denying a U.S. worker the opportunity against the benefit to the United States of granting the applicant the continued ability to pursue work in their specialized discipline. To satisfy this prong, an applicant should demonstrate that their past record of documented achievement "justifies projections of future benefit to the national interest." 5

    Documenting the Petition

    The NIW applicant must document each of the three prongs: that the area the applicant is working in has "substantial intrinsic merit" with "benefit that is national in scope," and that, based on past contributions and recognized abilities, the applicant "will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications." 6

    Documenting the first and second prong requires a clear, nontechnical explanation of the applicant's area and its application in the real world. Articles addressing the importance of particular areas of research and development, congressional acts, government publications, and historical documents can all be used to establish the "substantial intrinsic merit." Letters from distinguished authorities can elaborate on the relevance of the work to areas of significant national importance.

    Documenting the third prong is the most difficult part. Like their Extraordinary Ability and Outstanding Researcher counterparts, NIW applicants need to set themselves apart from the majority of their professional peers. The NIW applicant must provide compelling evidence of his or her place as an accomplished and highly respected member of the profession. Documentation of awards, prizes, or other special recognition should be provided. For scientists in academia, research publication records speak to their track record in the field. For researchers who have played a critical role in a study or investigation, reprint requests of research manuscripts can underscore the strong interest or impact within the scientific community. In Samira's case, we were able to demonstrate that her work was prominently featured in the NIH grant, establishing her significant role in the collaborative research project.

    Critically important are letters from fellow scientists, academicians, or business people who by virtue of their own acclaim and expertise can provide expert opinions. These letters must be carefully crafted to establish broad recognition of the importance of the applicant's work in the national community. A strong petition should contain a broad spectrum of support, ranging from the applicant's immediate mentor(s) or collaborators to individuals who do not know the applicant but who, based on their credentials, can render an independent, authoritative opinion of its merit and the applicant's promise. All supporting letters should be backed by the C.V. of the writers and other relevant biographical information that highlight the writers' prominence.

    To summarize: A strong NIW case must be made with care. There are traps that must be avoided in documenting the petition. As a rule, a well prepared petition will:

    • Avoid hyperbole and back up assertions with evidence;

    • Provide broad-based "unbiased" testimony;

    • Establish the broad impact the work will have to areas of national interest;

    • Keep the focus national;

    • Utilize "interested governmental agencies" and congressional letters of support where possible, provided the writers are in a position of knowledge or authority. For example, a congressman serving on a House subcommittee in the area of interest would add substantially to the weight of a petition, while a state senator who has no documented background of expertise or personal knowledge of the work would have a negligible effect;

    • Avoid mentioning that there are no U.S. workers qualified and able to replace the applicant, because that inquiry is precisely the purpose of labor certification.

    We provided Samira with guidelines for writers of letters of recommendation and two sample letters. Over the ensuing weeks we worked with Samira on documenting her case, providing editorial advice on the letters of recommendation as they came in. We made sure that each letter clearly addressed the criteria needed to win the case and omitted commentaries that INS would not be able to digest.

    Within 3 months Samira had won her National Interest Waiver. The process took less time than labor certification and opened up opportunities that would not have been available if she had gotten her green card via employer sponsorship. In most cases the process, including attorney's fees and application fees, costs between $6000 and $10,000.

    References

    1 INA Section 203(b)(2)(A)

    2 8 C.F.R. Section 204.5(k)

    3 In Re New York Department of Transportation, Interim Decision 3363 (AAO 1998).

    4 Id.

    5 Id.

    6 Id.

    John J. Gallini and Jeffrey W. Goldman are counsel at Testa, Hurwitz & Thibeault, LLP in Boston, Massachusetts, concentrating in business immigration law. They can be reached at Gallini@tht.com or Goldman@tht.com.