Monday, March 06, 2006


Do I Qualify for A National Interest Waiver?

Anonymous wrote:

I have been in the US since 1998 on H1B and then employed on an I from a foreign media company, I am now in a PhD program at a tier 2 school and my research has a national interest. I have a master's degree as well in an another discipline earned overseas. I will try to beef up my act before I graduate with my PhD with conferences, projects and artcles as much as I can. Would that make me eligble for NIW? The PhD, is that important? --Posted by Anonymous to Gil Ferrer Immigration Web Journal at 3/05/2006 02:56:58 PM

This will take a little bit of background information before I answer the question. The Second Employment Based category for permanent residency petitions is for advanced degree professionals or workers of exceptional ability (the EB-2 category). Normally this category requires a job offer from a sponsoring U.S. employer. The result is that the beneficiary of an EB-2 petition needs to go through the labor certification process first, before the EB-2 I-140 immigrant petition can be filed. Before the advent of PERM, this sometimes meant years went by before the labor certification was approved, and the I-140/I-485 green card application filed.

The law provides that if it can be shown that granting the EB-2 beneficiary permanent residency is in the national interest, then the job offer requirement is waived. Practically speaking this means no labor cert is required for a petition filed with a request for a National Interest Waiver (NIW) nor does it need to be sponsored by a U.S. employer.

An NIW petition requires, first, that the beneficiary establish that he/she has an advanced degree in an appropriate area (at least a Master's degree) or that they meet the standard of having exceptional ability (I will not go into what constitutes exceptional ability here.)

Second, the petition must show that the nature of the work impacts on the national interest of the United States, as follows:

1. The foreign worker's work is in an area of substantial intrinsic merit.
2. That the benefit of the work would be national in scope, not just locally beneficial to the region where the worker is based.
3. That having the foreign worker perform this work will serve the national interest of the United States substantially more than if a U.S. worker with the same minimum qualifications were doing the work.

The third item is usually the sticking point. In practicality it often raises the bar so that the proof required is comparable to that for the "aliens of extraordinary ability" category. I've sometimes filed petitions in both categories, for the same person, and have had the EA petition approved first.

So, to answer your question. No, the Ph.D is not essential but is helpful since it shows advanced work in your area of expertise.

More importantly, can you convince USCIS that your ability and record in your field are so superior and significant that having you perform the work impacting the national interest, would benefit the U.S. substantially more than any U.S. worker that could be found in a test of the labor market and that therefore a labor certification is unnecessary.

You may want to have a lawyer review your credentials with you in detail to advise you on your options. Thanks for your question.


Thursday, March 02, 2006


H-1B Extensions Beyond the Sixth Year.

Anonymous wrote:

My H1B is expiring in March 2007. If I want to extend my H1 Visa beyond the 6 year limit when should I apply for green card. Is there any cut off date or can I apply in a couple of months from now ? Will my H1 be extended ? Please let me know.

Many people who are nearing the end of their H-1B have this question. The law provides for extensions of H-1B status beyond the maximum six years if, at the time the H-1B worker reaches his six years, a labor certification, naming him/her as beneficiary, or an I-140 immigrant petition, has been on file for at least 365 days. It does not have to be "pending", but cannot have been denied. For example an approved labor cert filed with an I-140 for an immigrant petition filing can still be used so long as it was filed more than 365 days in the past. The beneficiary does not have to be working for the employer who filed it.

With the new PERM requirements for labor certs, this means that the recruitment activity necessary before a PERM application can be filed should commence well before one year prior to the end of the H-1B period.

Hope this helps and sorry for the delay in responding.


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