USING THE NATIONAL INTEREST WAIVER TO AVOID A LABOR CERTIFICATION

As the processing time for labor certification-based permanent residency applications increases and the success rate for those applications declines, many companies and individuals are pursuing alternate routes to a green card. One such possibility for individuals who possess an advanced degree or “exceptional ability” is a waiver of the labor certification requirement on grounds of “national interest.” An additional advantage of a national interest waiver is that the alien can file the petition on his or her own behalf without an employer (a job offer may still be necessary unless the employee can show that he can otherwise support himself or herself while in the U.S.). And perhaps the most important advantage of the national interest case is that it can be processed in only a fraction of the time that a labor certification application takes. Advanced degree professionals possess a U.S. academic or professional degree above a bachelor’s degree (a foreign degree of an equivalent level should be acceptable). An individual with a bachelor’s degree and five years of experience in the profession can be considered to possess the equivalence of an advanced degree.The INS requires that for an alien to fall within the category of exceptional ability, the petition must be accompanied by at least three of six types of evidence:

• an official academic record showing the alien has a degree, diploma, certificate, or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
• letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he is being sought;
• a license to practice the profession or certification for a particular profession or occupation;
• evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
• evidence of membership in professional organizations; or
• evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations.

 

Though there is no formal rule defining what constitutes “national interest”, recent court decisions have established a list of factors that show the permanent resident’s admission would be in the national interest:

• The alien’s admission will improve the U.S. economy;
• The alien’s admission will improve wages and working conditions for U.S. workers;
• The alien’s admission will improve educational and training programs for U.S. children and under qualified workers;
• The alien’s admission will improve health care;
• The alien’s admission will provide more affordable housing for young, aged, or poor U.S. residents;
• The alien’s admission will improve the U.S. environment and lead to more productive use of the national resources; or
• The alien’s admission is requested by an interested U.S. government agency.

 

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