Obtaining a “green card” usually requires the sponsorship of a close U.S. family member or U.S. employer. In the employment context, the default process is a specific employer testing the labor market for a specific job to be sure no qualified U.S. workers are being displaced.
While this system works well in many circumstances, some highly talented foreign nationals cannot easily utilize it. For example, post-doctoral researchers who contribute their talents to universities in temporary positions cannot be sponsored for lack of a permanent job. Also, those with an ownership interest in a research-commercializing entity may be disqualified from the sponsorship process. Many other situations can result in the same conundrum.
National Interest Waivers
The process that allows a highly talented foreign national to file an application for a green card without an employer sponsor is called a national interest waiver (NIW). What is being waived is the labor market test for a specific job with a specific employer. The reason for waiving it is that the applicant’s immigration would be in the national interest.
While the Administrative Appeals Office of the Department of Homeland Security (AAO) has provided guidance regarding this rule (see Matter of Dhanasar, 26 I&N Dec. 884 [AAO 2016]), interpretations still vary widely.
Updated Employer Guidance
The current competition for talent, especially in technology and national security, begs for a change in our immigration system. With no such change on the horizon, the White House has instead clarified when employer sponsorship and the labor market test can be waived for those with advanced degrees in STEM fields under the existing regulations.
The new guidance provides more direction, with an emphasis on how persons with advanced STEM degrees may qualify.
Updated Definitions and Clarity
Special focus is provided for “critical and emerging technologies” and areas that are “important to competitiveness or security.” The definition of “U.S. national security” is also addressed in this context. Importantly, specific publications that extensively explore these concepts are cited to assist both applicants and examiners in determining if the criteria are met.
The guidance also highlights the eligibility of a person with a Ph.D. in a STEM field. While not sufficient in itself, those who have earned such a degree exemplify the talent that the NIW category is meant to address and are recognized as such in the policy manual update.
Note that the NIW category is also open to those without an advanced degree who can prove they have “exceptional ability.”
Letters from government agencies or “quasi-governmental entities” supporting NIW petitions are also to be given weight in the decision-making process. Although not required, if an applicant is considered important enough to garner such support, it will significantly assist the application assuming the letter is detailed as described in the guidance.
Putting the Pieces Together
This update is well-timed given both the difficulty in attracting and retaining STEM graduates and global challenges in terms of technology and national security. While the immigration system is not the only solution, it is an important piece that can now more easily fit into the puzzle.
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