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National Interest Waiver Attorney in San Jose, CA, Providing Guidance to Foreign Workers in the PERM Labor Certification Process

Are you looking for a way to obtain a green card so you can stay and work in the U.S. on a more permanent basis? There are many types of employment-based immigrant visas, and likely, you are familiar with the most widely known ones; the employer-sponsored EB-2 and EB-3 visas.

But have you ever considered obtaining a green card via a National Interest Waiver petition?

Foreign nationals who show extraordinary ability or great expertise in any particular field of study may be allowed to bypass the requirements for labor certifications and secure green cards, granting them lawful permanent residence in the United States. However, the NIW process can be complicated, and the requirements and standards set by both the U.S. Citizenship and Immigration Services (USCIS) and the Department of Labor can be difficult to pass. For a better chance at a successful application process, immigrants are advised to consult with experienced immigration attorneys.

For assistance with applying for national interest waivers and other legal services in the practice areas of immigration law, contact our law firm and speak with experienced immigration attorney Alison Yew. The attorney and her legal team pride themselves on providing clients with knowledgeable legal services. While you are seeking your green card, our team will be beside you through the whole process.

Phone our law offices to schedule a consultation at (408) 645-6395.

What is a National Interest Waiver Petition?

A National Interest Waiver (NIW) petition falls under the employment-based immigration, second preference (EB-2) category. Thus, in order to be eligible, you must have either an advanced degree (or in the alternative, a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive experience in the applicant’s profession) or have “exceptional ability” in the sciences, arts, or business that will “substantially benefit the national economy, cultural or educational interests, or welfare” of the United States.

Normally, there is a permanent job offer requirement and requirements for approved labor certifications for those filing an immigration petition under this classification.

National interest waivers, however, request that the cumbersome labor certification process be waived for the sake of the “national interest of the United States,” thus, allowing an applicant to apply for an NIW immigration petition without a labor certification or a job offer from a U.S. employer, business owner, or their managers. This means you may file the petition on your own (“self-petition”). Alternatively, a U.S. employer or their managers may file for national interest waivers on your behalf in hopes of avoiding the labor certification requirement.

How Does U.S. Citizenship and Immigration Services Determine if Your Work is of ‘National Importance’?

The requirements that you must satisfy are set forth in the precedent decision, Matter of Dhanasar, issued by the Administrative Appeals Office (AAO) in 2016.

In the Matter of Dhanasar, the AAO sets forth a new three-prong test that replaces the previous NYSDOT test. It has a more flexible standard than NYSDOT and is intended to make the waiver more broadly available to foreign nationals pursuing endeavors that benefit the United States, including entrepreneurial ventures.

Specifically, to be eligible for a national interest waiver, you must be able to demonstrate the following:

  • Your proposed endeavor has both substantial merit and national importance.
  • You are well-positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

Can National Interest Waiver Lawyers Assist Foreign Nationals Acquire an Employment-Based Visa?

The AAO decision has provided the following guidelines to meet the criteria set forth in the Matter of Dhanasar:

  • The foreign national’s proposed endeavor must demonstrate both substantial merit and national importance. A wide range of fields of specialization may qualify, including business, entrepreneurialism, science, technology, culture, health, or education. The applicant is not required to show that the proposed endeavor will bring immediate or quantifiable economic benefit to the United States, though evidence to show the endeavor’s potential to create significant economic impact may be a favorable factor. The applicant must show that the foreign national’s proposed endeavor has “national importance,” which may include local or regional endeavors. For example, an endeavor that has the potential to employ U.S. workers or has other positive economic effects, particularly in an economically depressed area.
  • The foreign national is well-positioned to advance the proposed endeavor. To determine whether the petitioner meets this prong, a USCIS officer will consider an individual’s education, advanced degrees, skills, knowledge, and an official academic record showing success (or comparable evidence) in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor and the interest of potential customers, users, investors, or other relevant entities or individuals. Additionally, the applicant is not required to show that the endeavor is more likely than not to succeed ultimately, so long as they can establish that they are well-positioned to advance the proposed endeavor.
  • On balance, NIW petitions must show that it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category. To meet this prong, USCIS will evaluate factors such as whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification for employment authorization; whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions and exceptional ability; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process, thus granting an EB-2 visa.

Very few foreign nationals meet the requirements laid out by these three prongs. Sometimes, there may be other comparable evidence that can be provided to prove that applicants qualify for a national interest waiver.

Consider whether you have accomplished or if you possess any of the following:

  • An advanced degree in learning relating to the endeavors you wish to apply for.
  • Have received recommendation letters from your colleagues, researchers, managers, executives, or professors.
  • Can provide previous occupation evidence of having performed an excellent job beyond the abilities of your peers.
  • Have made significant contributions to the field of medicine, arts, business, sciences, research, technology, or industry.
  • You exude passion for quality work in your field of choice.
  • Have received recognition for your professionalism and achievements or some other similar award.
  • Continually demonstrated that your abilities are a gift to your institution and that any professional and, indeed, any country in the world would want you as a member of their team.

(Please note that, if approved, your wife or husband and your minor children may accompany you, the principal, and receive green cards as well.)

Even applicants with advanced degrees from respected universities and those who have established themselves as workers of exceptional ability are not always granted waivers. The immigration experience, regardless of your level of skill, can feel unfair and cruel as you seek approval that you may never receive. It’s important to have knowledgeable support in the application process. The dedicated and confidential attorney-client relationship can be among one of the greatest benefits of hiring attorneys to represent your case.

While it is difficult to define an ‘exceptional ability in the eyes of government entities and business organizations, lawyers familiar with these practice areas can help supply the required documents and supporting evidence to help your application find success.

At Yew Immigration Law Group, our attorney and legal team have years of providing successful representation to those interested in filing a national interest waiver petition, green card application, and other processes that fall under the law. For those interested, we can also help residents with legal status on the path toward obtaining United States citizenship. Please request a consultation so that we may better determine your eligibility and provide guidance as you pursue your dreams of immigration and employment.

Contact Our Law Firm to Schedule a Consultation with an Experienced Immigration Attorney

The National Interest Waiver (NIW) petition is highly complex. Not only is the required supporting evidence exhaustive, but the legal three-prong test is hard to meet without a more in-depth understanding of the legal analysis of the law. A national interest waiver lawyer can help you navigate the entire process with the goal of helping your case meet the legal criteria.

Furthermore, having all the right documentation alone is not enough. You have to organize and present it in the best way possible, and an experienced San Jose EB-2 national interest visa attorney will be helpful in ensuring that everything is presented in such a manner that makes it easier for USCIS to review and approve the petition.

Our offices are based in San Jose, but our firm serves clients across the state of California, including localities such as Oakland, Berkeley, Sunnyvale, Alameda, Santa Cruz, the San Francisco Bay Area, and Silicon Valley. Attorney Alison Yew has decades of experience in her law career and prides herself in helping clients seeking to legally immigrate to the United States for family, work, retirement, and education.

Whether you’re a new applicant looking to submit their first application for approval or you’re one of many applicants who were initially denied the benefits they were seeking, our firm offers clarity, confidence, knowledge, and respect to every new client who consults with us. If you’re preparing to undertake the daunting immigration process, speak with our law office first. We can help you save time, energy, and heartbreak while improving the likelihood that your pursuits are successful.

If you think you might be eligible to have the labor certification process waived, contact our law office online or by phone at (408) 645-6395 and speak with our immigration lawyer to get assistance in preparing for the petition process. Schedule a consultation today.