National Interest Waiver
Certain professionals working in areas that directly benefit the US can apply for US permanent residence without their employer agreeing to act as a sponsor. These self-filing petitions are regularly called National Interest Waivers. Along with the lack of need for a sponsor, the main benefit of this category is the avoidance of the labor certification process.
The employment-based Second Preference Category (EB-2) includes members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business. Although this category normally requires a job offer and labor certification, USCIS may waive this requirement if the work of the alien is in the “national interest”. Statements by experts concerning the importance of their work to the overall well-being of the nation are considered, along with past accomplishments and the need for their particular type of skill in the U.S. This standard has not been particularly well defined by USCIS. Successful cases will prove that the alien’s presence will improve: the US economy; US working conditions; the educational system of the US; health care; housing; the environment; or an interested US government agency has requested the waiver.
In August of 1998, USCIS (then INS) attempted to further define this standard through the New York State Dept. of Transportation case (NYSDOT). NYSDOT states: (1) the applicant must seek to work in an area of “substantial intrinsic merit”; (2) the applicant must provide a benefit that is national in scope; and (3) the benefit to the US must considerably outweigh the inherent national interest in protecting US workers through the labor certification process. The standard established by NYSDOT remains vague and difficult to define.
Extraordinary Ability Permanent Residence
The Extraordinary Ability category is open to aliens with extraordinary ability in sciences, arts, education, business or athletics who have been able to demonstrate sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Successful applicants should show that they have reached “the small percentage of individuals who have risen to the top of their field of endeavor.”
Like the National Interest Waiver category, the alien does not need to have an offer of employment to file under this category. However, the application does need to document that he or she intends to pursue work in the US in his or her area of expertise.
To demonstrate “sustained or international acclaim” and the recognition of the applicant’s work, the applicant must submit evidence of a one-time achievement such as a major international award (Nobel Prize, Academy Award, etc.) or three OR MORE of the following:
- Receipt of lesser nationally or internationally recognized prizes or awards.
- Membership in an association in the field for which classification is sought, which requires outstanding achievement of their members, as judged by recognized national or international experts.
- Published material about the person in professional or major trade
- Publications or other major media.
- Participation as a judge of the work of others.
- Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
- Authorship of scholarly articles in the field.
- Artistic exhibitions or showcases
- Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
- High salary or remuneration in relation to others in the field.
- Commercial success in the performing arts.
- Other evidence evidencing extraordinary ability not listed in one of the uscis will generally not award the visa unless it looks at the quality of evidence to see if the evidence category is met.
J Waivers for Foreign Medical Practitioners
J-1 exchange program visas have been commonly used by foreign medical graduates (FMGs) who come to the United States for residency and training. These visa programs are intended to provide foreign medical practitioners up to date, modern training, and to return to their home countries with this newly acquired skill. All FMG J-1 visas carry a 2 year home residence requirement under the Immigration and Nationality Act Section 212(e). This requirement prevents these visa holders from being granted permanent residence or other types of US work visas (H, L etc.) until they have either satisfied the 2-year requirement or have it waived.
While most foreign medical graduates pursue waivers based on their profession, they are not limited to this type of filing. They can pursue waivers based on exceptional hardship to a US citizen or permanent resident spouse or child, or based on the claim that they would face persecution based on race, religion or political opinion in their home country. Waivers based on a letter of no objection from the alien’s home country are not available to physicians. Extreme hardship and persecution-based waivers are difficult to obtain because of the high level of proof required, and many physicians simply will not have a case that fits the requirements. This leaves them with waivers based on a request from an interested government agency. There are a number of agencies that will sponsor waivers, as well as the Conrad State 30 program (please see below).
One of the most common methods of obtaining a J “waiver” is to work for a designated period of time in a designated Health Care Professional Shortage Area (HPSA) or Medically Underserved Area (MUA). State Health Departments have developed their own waiver review systems, in conjunction with federal/Dept. of State requirements.