Many people have heard of the traditional method of obtaining permanent residence in the United States. From a somewhat simplistic standpoint, this is viewed as being ‘sponsored for a Green Card.’ During that process, a sponsoring employer files paperwork with the Department of Labor and, after that is certified, files a further application to USCIS. However, in many instances, foreign born scientists and researchers find themselves in a situation whereby their employer is not in a position to sponsor them in such a manner. Luckily, if you find yourself in such a situation, there are options available to you in the form of the EB-1A, Extraordinary Ability and EB-2, National Interest Waiver visa categories.
In this blog I will review the National Interest Waiver category, which is generally recognized as less restrictive and a more appropriate standard for scientists and researchers to meet as they review their options for permanent residence. In my next entry, I will review the more exacting standard of Extraordinary Ability. For the National Interest application, the statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2), while the regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k). It is important to note that while the National Interest Waiver is not necessarily employer sponsored, it is employment based, and an applicant must provide evidence that they will continue to work in their area of expertise.
While the term National Interest was not initially defined, in 1998 a precedent decision was issued in the matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). There a three part test was established where an applicant must show that they will seek work in an area that has ‘substantial intrinsic merit,’ that the proposed benefit of the employment be ‘national in scope,’ and, finally, that the applicant must serve the national interest to a substantially greater degree than an available US worker with the same minimum qualifications. For scientists, postdocs, researchers, engineers and others undertaking similar work, the first two prongs of the test are fairly easy to satisfy. Any basic, applied, or even clinical research can be shown to have ‘substantial intrinsic merit’ with the proposed benefit being ‘national in scope.’ Easy, right? No, not so fast.
The final prong of the test establishes a restrictive standard of adjudication. It is not enough to simply show that you have certain findings and accomplishments in your field. Rather, a successful applicant must be able to provide objective evidence and documentation that serves to establish a higher degree of impact and influence in their specific area of expertise. There are a number of ways that an applicant can provide evidence of the extent of their contributions and accomplishments, and overall impact on their field. When you review your publication record, can you say that your record is more extensive, impressive and can be held to a higher standard than others of a similar education and experience? Do you have a strong record of being a first (or second) named author on your publications? Have any of your publications been invited? Similarly, dissemination of your work in other ways can help establish, or even strengthen, your case. Conference presentations (especially invited and/or at prestigious events) can also serve to evidence the importance and significance of a certain piece of work in the field.
What about reference and recognition of your work from others? Rightly or wrongly, USCIS will tend to view your citation history as a fairly good barometer of the impact of your work in your field. So, will a strong citation history mean you qualify? It certainly helps, but is by no means the only factor. Similarly, other researchers who work in fields that do not necessarily lend themselves to being heavily cited are not simply disqualified from applying (receiving an approval) because their citation history is not strong. However, without a strong citation history, an applicant should be ready to show influence and impact upon their field of expertise in other ways.
There is also the issue of expert opinion letters which, while important, should not serve to form the cornerstone of an application. A potential application will need to carefully review the authors of such letters, as well as the contents of their letters, to make sure that the letters accompanying an application serve as a positive reinforcement of the evidence in the record.
At Leavy, Frank & Delaney, LLC (www.leavyfrank.com), we also feel that the organization and structure of the application carries a high degree of importance to a potential applicant’s change of success. So, while I hope the above serves to grant a base understanding of this visa category, it is also important to note that the EB-2, National Interest Waiver is a restrictive standard, and while it may well be an appropriate application to pursue, a proper evaluation of credentials is an extremely important initial step.
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