评估国家利益豁免的要点

Many foreign nationals seeking permanent residency are overwhelmed by the excess of technical information on the various options for securing a green card.  In this article, we’ll discuss the particulars of one of these options, the National Interest Waiver. 

The relevant law, INA §203(b)(2), sets out the parameters for Employment-Based Second Preference (Eb-2) visas, which concerns aliens with advanced degrees or exceptional ability.  The most common Eb-2 visa is based on the Labor Certification, which requires the foreign worker to have a permanent job offer and the support of the U.S. employer.  However, the law creates an exception to this process.  An alien can be granted a National Interest Waiver, which requires no job offer or U.S. employer support, if his/her contributions are deemed to benefit the national interest.  However, neither the statutory law nor USCIS regulations have defined what “national interest” means in this context.

           1. Major Factors in National Interest Waiver Evaluation

How, then, is one to determine eligibility for a waiver of Labor Certification?  Many highly educated and intelligent applicants have been denied this classification due to ineligibility and questionable documentation.  To avoid unfavorable results, the first step in the process is an evaluation of the applicant’s credentials.  There is no hard and fast rule that determines eligibility, but a close examination of past appeals and our own cases has given us a workable paradigm.  There are a number of factors that we consider in our evaluation:

• Graduate Degrees: The majority of our clients have earned a PhD.  Others are in the process of earning a PhD and have had unusual success in their graduate study.  It is rare, but still possible, for an applicant who holds a Master’s degree but has achieved outstanding results to secure a National Interest Waiver.

• Contributions of Significance to the Field: For researchers, significant contributions usually take the form of peer-reviewed articles, conference presentations, and patents, etc.  Although the volume of publications is a factor, it is possible for a researcher with only a few but influential articles to secure a National Interest Waiver.

• Influence of the Applicant’s Work: This is most easily measured by the number of citations of an applicant’s work.  Citations are an important factor in this process, but a minimal record of citation does not necessarily mean that an applicant cannot earn a National Interest Waiver.  The Office of Administrative Appeals (AAO) has ruled that an applicant with sufficient evidence of influence may be granted a National Interest Waiver even if there is moderate or no record of citations of his/her works.  Other evidence of influence include service as a peer reviewer for scientific journals, media reports of applicant’s work, awards, and requests for applicant’s technical advice or reprints of one’s work.

• Importance of the Applicant’s Work: This point may appear tricky at first glance.  The accepted standards for this waiver require that the Applicant’s field of research be important to the nation as a whole.  For example, the benefit of the applicant’s research cannot benefit one part of the country at the expense of another. 

• The Applicant’s Qualifications are Unique:  One of the critical elements of the National Interest Waiver is that the applicant must have qualifications that cannot be articulated in the context of a Labor Certification.  Our evaluation takes the applicant’s body of work into account to determine whether or not this point can be successfully argued.  This can be established with letters of recommendation from experts in the field that assert that the applicant’s qualifications are unique and combine education and experience with the ability to create results to a degree well beyond that of minimally qualified candidates.  This point is also demonstrated by citations of the applicant’s work, service as a peer reviewer, and publication of articles in prestigious international journals and conferences.

            2. Substantive Evidence and Letters of Recommendation

After the initial evaluation, the next step is putting together a sound petition.  The primary objective is to obtain letters of recommendation from the applicant’s colleagues, supervisors, and independent sources that are familiar with his/her published research results.  These letters provide the context for the documentary evidence that we submit.  The recommenders explain the significance of the various published works on the scientific community and the ways in which this research is relevant to the national interest.  These letters are also used to establish the unique quality of the applicant’s abilities that are superior to his/her peers with comparable education and experience.  Independent letters of recommendation are an important part of this portion of the evidence because they demonstrate that the applicant’s accomplishments have been recognized outside his/her immediate circle of colleagues and supervisors.

The petition must also contain carefully documented evidence of the applicant’s body of work and its influence on the field of research.  This includes copies of publications authored or co-authored by the applicant, a record of citations of this work by a reputable search engine such as Web of Science, evidence of the applicant’s service as a peer reviewer, copies of relevant media reports, etc.  The applicant will confer with the attorney to determine which evidence is necessary.  This evidence is used in conjunction with the letters of recommendation to argue the basic points of the National Interest Waiver.

               3. Three-Prong Test for National Interest Waiver

According to In re New York State Department of Transportation, the only USCIS adopted AAO decision for NIW, the standard “test” for the National Interest Waiver can be broken down into 3 prongs:

•    the alien must seek employment in an area of substantial intrinsic merit

This prong is applicable to most areas of scientific research.  In order to demonstrate that the applicant’s work is important, we need to be able to clearly explain the application and benefits of the research.  In re New York State Department of Transportation cites the construction of bridges as an area that has obvious intrinsic merit.  Of course, most scientific disciplines directly benefit humankind, and the letters of recommendation and supporting evidence must indicate the ways in which this research benefits society.   

• the proposed benefit must be national in scope

Once we have shown that an applicant works in an area of substantial intrinsic merit, we need to argue that these benefits are national in scope.  As In re New York State Department of Transportation points out, this does not mean that the applicant must be involved in projects that directly affect the nation as a whole.  The decision uses as an example an applicant who works on roads and bridges in a specific area.  While this work does not directly impact the nation, it represents technological progress that may be used by others in various parts of the United States.  In addition, this opinion makes the point that research of national importance cannot be contrary to any part of the nation.  The example for this point is a dam that provides water for one area while depriving another.  Thus, if an area of research is of substantial intrinsic merit and is not contrary to the interests of any portion of the United States, we can argue that the benefits are national in scope.

• the national interest would be adversely affected if a labor certification were  required for the alien

Of these three requirements, this is the most difficult to demonstrate.  In the legal precedent used to establish these standards, In re New York State Department of Transportation, AAO ruled that to show that a labor certification would be contrary to the national interest, the applicant needs to prove that he/she is capable of performing at a substantially higher level than a minimally qualified U.S. worker.  This is a subjective standard that requires skilful argument on the part of the attorney and appropriately worded letters of recommendation.  We have successfully established this point in close to 100% of our National Interest Waiver cases. 

                  4. Liu & Associates and National Interest Waiver

In order to maintain our high standards, we choose not to argue cases with a poor chance of success.  Clients who do not qualify for a National Interest Waiver do have other options, and we will help a client choose the best option for their case.  All clients applying for a National Interest Waiver will be given a clear breakdown of their case’s chances of success. 

If USCIS requests additional evidence for any given case, we will quickly review the request and compile the additional evidence.  Thus far, we maintain a close to 100% success rate for cases that are issued a Request for Evidence.  In the rare instances when a case is denied, we carefully review the evidence before taking the next step.  Oftentimes these cases have met the standards set out in INA §203(b)(2) and relevant AAO decisions.  In such cases, we evaluate the situation and decide if it is practical for the client to appeal the denial to AAO.  If, for practical considerations, we do not recommend appeal, we will seek other alternatives, such as filing a new petition in the same or different classification.
 
Our office is committed to securing the best possible result for all of our clients.  Through every step of the process, our experienced attorneys provide advice and up-to-date information on the status of a client’s case. 

 

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刘宗坤律师（Z. Zac Liu, Esq.），法学博士（J.D., Valparaiso University Schoolof Law）、哲学博士(Ph.D., Peking University)，伊利诺伊州最高法院及联邦法院执照，曾担任Valparaiso University Law Review的编辑和审稿人， 著有中英文书籍多种，散见于中美各大学图书馆。执业以来，他已代理无数名来自世界各地的科研人员和专业人士成功获得绿卡及各类非移民签证，尤其在国家利益豁免（NIW）、特殊人才（Eb-1A）、杰出教授和研究员（EB-1B）、PERM 劳工证、H-1B工作签证等方面积累了丰富的经验。读者若有移民法律问题，可将简历发往zliu@niwus.com。刘律师会在两个工作日内对您的问题做出免费答复或评估。

白凯玲律师 (Kellie Pai, Esq.)，法学博士(J.D.，University of Houston Law Center)、文学学士(B.A., University of Texas at Austin),德克萨斯州最高法院执照，刘宗坤联合律师事务所专业移民律师。

Liu & Associates, PLLC
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