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Many foreign researchers are unaware of the fact that they can apply for permanent residence without the support of their employer through a process called a national interest waiver. In fact, an applicant in this category may apply under Employment-Based Second Preference (EB-2) (INA §203(b)(2), 8 USC §1153(b)(2)), 8 CFR §204.5(k) and use simultaneous filings of Forms I-140 and Form I-485, Application to Register Permanent Resident or Adjust Status. This concurrent filing is permitted under 8 CFR 245.2(a)(2) of the Statutes. However, the Investigator must establish that he or she is an Outstanding Investigator Alien whose employment in the United States would greatly benefit the nation as dictated by the controlling statutes of INA §203(b)(2)(B), 8 USC § 1153(b)(2)(B); 8 AFM at 22.2(j)(4).
When employers apply for a foreign researcher, they must apply for a Labor Certification. However, foreign nationals seeking a national interest waiver request that the Labor Certification be waived because it is in the interest of the United States. When the investigation has the potential to benefit the nation as a whole, the argument is that the nation would be harmed if a labor certification were required, as they could lose this talented investigator.
Although the jobs that qualify for a national interest waiver are not defined by law, national interest waivers are generally awarded to those who have exceptional ability and whose employment in the United States would greatly benefit the nation.
Those seeking a national interest waiver can apply on their own (they do not need an employer to sponsor them) and can file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker, and the employer or applicant. you can sign the petition.
The “national interest” exemption must be significantly higher than that required to establish the potential national benefit required for all persons seeking “exceptional” status. In Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm. 1998) [“NYSDT”]Legacy INS has provided guidance regarding the threshold for a waiver that includes the following criteria:
(1) The person seeks employment in an area of substantially intrinsic merit;
(2) The benefit will be national in scope; Y
(3) The national interest would be adversely affected if a labor certification were required.
Additionally, USCIS suggests seven other factors to consider. Since there is not a significant amount of guidance on the national interest waiver in terms of requirements, USCIS suggests looking at exceptional ability requirements.
1. Have 3 years of teaching or research experience in the academic area;
2. Find input:
(a) For a tenured teacher (or track holder) position;
(b) Comparable position at the university or institute of higher education to conduct research; Prayed
3. Must be internationally recognized as outstanding in a specific academic area. Evidence that the professor or researcher is internationally recognized as outstanding in the academic field must include at least two of the following:
(a) Receipt of major awards or recognition for outstanding achievement.
(b) Membership in an association, which requires outstanding achievement.
(c) Material published in professional journals written by others about the applicant’s work.
(d) Proof of the person’s participation as a judge of the work of others.
(e) Evidence of original scientific research.
(f) Authorship of books or academic articles in the field.
To summarize, the national interest waiver offers a benefit to both the United States in that it allows our country to retain the best and brightest researchers from around the world and also allows researchers to apply without employer assistance. , as many times universities and hospitals take time to make requests.