INS Immigrant Visa Adjudication Chief Edward Skerrett has responded to an attorney’s request for an opinion on the issue of whether an alien with an approved EB-2 I-140 National Interest Petition is eligible to complete processing of the immigrant visa when the alien subsequently changes employers within the same industry. Skerrett stated the following in response to the inquiry:
“When a service center approves a petition based on a national interest waiver, the job offer requirement is waived, regardless of whether an employer signed the I-140 petition. In determining the validity of an approved petition filed under the national interest waiver provision, the primary issue is whether the alien still intends to be performing the activity or work which was the basis for the national interest waiver. If the national interest waiver was based on the alien’s work with a particular employer, a petition filed by that employer would no longer be valid if the employer will not hire the alien. If, however, the basis for the national interest waiver was the alien’s contributions to an industry which can be utilized by another employer, the petition may remain valid85The validity of each petition should be determined on a case-by-case basis, when it is brought to the attention of an adjudications officer.”
What this basically means is that in some cases, the national interest waiver will transfer. The main issue is whether the benefit to the national interest will be duplicated with the new employer or whether the application was approved on the basis of specific work being done only with the first employer.
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