As explained in our last issue, the national interest waiver (NIW) is an exemption to the usual labor certification process most commonly used for permanent residence. That is, an applicant can gain permanent residence without labor certification and without an employer sponsor under this category. To qualify, an individual must be a member of the professions holding an advanced degree (beyond bachelor's degree) or their equivalent, or a person of exceptional ability in the sciences, arts or business. Exceptional ability means a degree of expertise significantly higher than the ordinary. There are two paths to permanent residence through the national interest waiver. One is limited to physicians willing to serve in health professional shortage areas (HPSA), the other is a general NIW applying to all occupations.

We will discuss the general path often suited for specialist physicians and medical researchers. Again, to qualify for permanent residence based upon the general national interest waiver (NIW), the applicant must have either an advanced degree (master’s or above) or demonstrate exceptional ability in her field.

In 1998, the INS' decision, called Matter of New York State Department of Transportation, held that an individual seeking a national interest waiver must satisfy three tests:

1. His work is in an area of substantial intrinsic merit.

Areas of substantial intrinsic merit may include:
A. Improving the U.S. economy;
B. Improving wages and working conditions for U.S. workers;
C. Improving education and programs for U.S. children and underqualified workers;
D. Improving health care
E. Providing more affordable housing; or
F. Improving the U.S. environment and making more productive use of natural resources; or
G. Interested government agency request

2. His proposed benefit must be national in scope; and

3. He must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The alien must present a national benefit so great as to justify a waiver of the labor certification process.

This is a difficult standard and only those who work is critical to the success of an important project, such as a pharmaceutical or medical research, have been approved for the NIW. Medical researchers who are prinicipal investigators are great candidates for the NIW. Badmus Immigration Law Firm evaluates potential NIWs on a case-by-case basis. If you believe you may qualify, please contact us.