National Interest Waiver – employment based US immigration

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Dev B. Viswanath, Esq. (Photo courtesy of Dev B. Viswanath, Esq.)

Certain foreign individuals who would like to work in the United States may be eligible for an employment-based, second preference visa if they have an advanced degree or its equivalent, or have an exceptional ability. Exceptional ability means having a degree of skill considerably higher than usually encountered in the fields of science, art, or business.

A national interest waiver petition is part of the employment-based, second preference visa category which is when a foreign employee requests that the labor certification be waived because it is in the best interest of the United States. There is no definition that clearly states which jobs qualify for a national interest waiver, but they are usually granted to those foreign employees who have an exceptional ability and whose employment would benefit the United States. A foreign employee does not need to have both an advanced degree and an exceptional ability, it can be either one. Foreign employees may petition for a national interest waiver for themselves and do not need an employer for the waiver.

The supporting documents for the national interest wavier are very important and key in submitting a successful waiver application.

There are a few important factors that are considered in determining whether a foreign employee will be granted a national interest waiver:

*If the foreign employee’s admission will be beneficial to the American economy;
*If the foreign employee’s admission will improve the working conditions and wages of U.S employees;
*If the foreign employee’s admission will improve training and educational programs; and
*If the foreign employee’s admission is asked for by an interested U.S. government agency.

Any dependents of EB-2 visa holders, spouse and children under the age of 21, may be eligible for derivative immigrant status.

The National Interest Waiver (NIV) allows for a much faster process towards getting a green card, by removing the step of the labor certification with the Department of Labor and the obstacle of having to recruit for the position.

If you or someone you know have gained widespread recognition in a particular field of study which you think fits into what we have described above, and are interested in finding out more, please consult with an experienced attorney.

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