Written by Meredith W. Barnette, Esq., Partner.
Last year, the Biden administration introduced new guidance related to National Interest Waivers (NIW) which our firm has already seen have a significant positive impact for eligible foreign nationals.
Specifically, the new policy memo clarified and provided further guidance about NIW eligibility for advanced science, technology, engineering and math (STEM) degree holders. The new guidance, published in Volume 6, Part F, Chapter 5 of the United States Citizenship and Immigration Services (USCIS) Policy Manual in January 2022, significantly affects qualified foreign nationals, and Garfinkel Immigration Law Firm expects there to be more possible positive impacts in the future.
Generally, foreign nationals who have an “exceptional ability” or hold an advanced degree (or its equivalent), can receive an NIW and apply for permanent residency in the United States via the employment-based second preference (EB-2) category. NIWs are available for foreign nationals whose continued employment in the United States is determined to be in the national interest.
The updated guidance clarified that almost all STEM graduates can be eligible, or will soon be eligible, for an NIW, depending on their level of degree and professional experience. This provides a pathway to permanent residence, and ultimately citizenship, for more qualified foreign nationals that may not have been available previously.
Overall, this updated guidance has been a welcomed addition to the NIW path for foreign nationals because of the benefits that come with an NIW.
First and foremost, a foreign national can self-petition in the NIW process.
Self-petitioning means that the foreign national does not need to secure an employer sponsor in order to file the NIW petition; instead, it allows the foreign national to receive permanent residency in the United States without necessarily receiving an offer of permanent employment, as long as they prove they will continue working in the applicable STEM field in the U.S. This is an option that is not usually available to those applying for an employment-based green card and which allows the foreign national to work for any employer in their industry, regardless of sponsorship opportunities.
Moreover, by pursuing the NIW, the foreign national skips the PERM Labor Certification, which is typically the first step of the green card process, whereby an employer must test the labor market to ensure there are no able, willing, available and qualified U.S. workers for the offered job. The PERM Labor Certification step is both costly and time-consuming for employers, usually requiring 12-24 months, or more, depending on circumstances.
Foreign nationals can apply for, and receive, a green card in a more cost efficient and less time-consuming manner by receiving an NIW and skipping the PERM Labor Certification.
Below is further information about the Biden administration’s updated NIW policy guidance, the eligibility criteria for STEM graduates, the application process and more.
Biden administration’s STEM national interest waiver guidance
The new guidance clarified and explained “the unique considerations for (a national interest waiver) for persons with advanced degrees in science, technology, engineering and math (STEM) fields and entrepreneurs.”
Specifically, the policy memo clarified the specific evidentiary requirements for foreign nationals with advanced STEM degrees, which includes:
- The evidence provided in support of the national interest waiver “must demonstrate that a STEM endeavor has both substantial merit and national importance.”
- The foreign national’s “education and skillset are relevant to whether the person is well positioned to advance the endeavor.” The policy memo added that advanced degrees, specifically a Ph.D., are “an especially positive factor to be considered along with other evidence for purposes of the assessment.”
- Further, other positive factors supporting a national interest waiver application include the applicant possessing an advanced STEM degree, particularly a Ph.D.; the applicant being engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and/or the foreign national being well positioned to advance the proposed STEM endeavor of national importance.
“In the fields of science, technology, engineering, and mathematics (STEM) – fields that are critical to the prosperity, security, and health of our Nation – our history is filled with examples of how America’s ability to attract global talent has spurred path-breaking innovation,” a fact sheet from the White House about the guidance states. “Our commitment as a nation to welcoming new talent has long provided America with a global competitive advantage, and we must continue to lead in this effort.”
The policy memo further reads: “USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.”
NIW recipients are still subject to the priority and cut-off dates established in the Visa Bulletin, the publication from the Department of State (DOS) detailing immigrant visa (green card) availability each month. However, as mentioned previously, those in the NIW category can self-petition (meaning they do not necessarily need employer sponsorship) as well as bypass the PERM Labor Certification step. Therefore, the NIW is an advantageous strategy worth considering for foreign nationals with a STEM degree.
More details about the eligibility for a STEM national interest waiver and the documentation requirements are discussed in upcoming sections.
National interest waivers: Eligibility criteria
As mentioned above, NIWs are usually available to foreign nationals with an “exceptional ability” or who hold an advanced degree (or its equivalent).
Individuals applying for an NIW under the “exceptional ability” provision must:
- Prove they are “exceptional” in a field related to the sciences, arts or business.
- Prove that their presence and employment in the United States will “benefit the national economy, cultural or educational interests, or welfare of the (country) in the future.”
- Prove their services associated with their exceptional ability “are sought by an employer” in the United States.
Foreign nationals with an advanced degree qualify for an NIW if:
- They hold a bachelor’s degree from a United States’ college or university, or its equivalent, plus have five years of “progressive,” post-degree experience in a related field ; or
- They have received a master’s or higher degree from a U.S. college or university, or its foreign equivalent.
In practical terms, the guidance issued by the Biden administration in January 2022 creates a pathway for many foreign nationals who have completed a STEM program at a U.S college or university (or its equivalent) to apply for and receive an NIW, as they can qualify as holding an ”advanced degree.”
In many cases, a STEM graduate with the requisite degree can begin their green card application by pursuing a self-petitioned NIW immigrant visa petition detailing work in one of the critical and emerging technologies promoted by the government. However, the completion of the green card process will be pending the cutoff dates established in the Visa Bulletin for the EB-2 category, which can be several years for certain nationalities. Still, the NIW is advantageous for those foreign nationals as it bypasses the PERM process and does not require employer sponsorship.
STEM graduates with a bachelor’s degree (or its equivalent) must complete the five-year postgraduate work requirement before they become eligible to begin the green card process via an NIW. Those foreign nationals can gain the necessary experience by obtaining a nonimmigrant work visa to stay in the United States, or by returning to and finding employment in their country of origin.
This updated guidance is intended to “promote efficient and effective benefit processing as USCIS reviews requests for national interest waivers,” according to a fact sheet released by the White House.
Learn more about the Visa Bulletin and applying for a green card here.
National Interest Waivers: Three-part test and other requirements
As mentioned earlier, a foreign national seeking an NIW must first establish they are eligible for EB-2 classification.
In addition, the foreign national must demonstrate their employment is truly in the national interest and it would benefit the U.S. to a greater degree than other minimally qualified U.S. workers. This is proven through a three-part test that has been created by DHS.
The three-part test involves proving:
- The foreign national’s proposed endeavor has both substantial merit and national importance
- The foreign national is well positioned to advance the proposed endeavor
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification
As previously noted, no offer of employment is required, however, the foreign national must also submit evidence that they are coming to the U.S. to continue work in their area of expertise and that their admission will prospectively benefit the country.
The foreign national can provide the following evidence, which will likely be sufficient to prove eligibility:
- An up-to-date Curriculum Vitae (CV).
- Proof of a bachelor’s degree and master’s degree, if applicable, from a U.S. college or university, or its equivalent.
- Letters of support. Testimonials and support letters from independent researchers or executives with no vested interested in the approval of the immigrant visa petition will be looked upon more favorably than those with an interest in the STEM degree holder’s approval or who were former collaborators.
- Proof of work in critical/emerging technologies that are of particular importance to the national security of the United States, as specified by the National Science and Technology Council. Those fields include:
- Advanced Computing
- Advanced Engineering Materials
- Advanced Gas Turbine Engine Technologies
- Advanced Manufacturing
- Advanced and Networked Sensing and Signature Management
- Advanced Nuclear Energy Technologies
- Artificial Intelligence
- Autonomous Systems and Robotics
- Biotechnologies
- Communication and Networking Technologies
- Directed Energy
- Financial Technologies
- Human-Machine Interfaces
- Hypersonics
- Networked Sensors and Sensing
- Quantum Information Technologies
- Renewable Energy Generation and Storage
- Semiconductors and Microelectronics
- Space Technologies and Systems
Note: There are additional documentation requirements and criteria to qualify as an individual with exceptional ability rather than based on an advanced degree. Please contact the attorneys at Garfinkel Immigration Law Firm to learn more about those documentation requirements.
Impacts of updated STEM NIW guidance
Since the updated guidance was released, Garfinkel Immigration Law Firm has seen a multitude of successful cases by both self-petitioners and employer sponsors. Some of the fields in which the Firm has seen NIW success include:
- Advanced computing
- Artificial Intelligence (AI)
- Biotechnology
- Computer science
- Direct clinical trials
- Foreign language instruction
- Pharmaceuticals
While the STEM NIW guidance has already had significant positive impacts for eligible foreign nationals, a more substantial backlog in the EB-2 Visa Bulletin category could develop if a large number of foreign nationals begin applying for NIWs. This is because there could be a higher demand in that classification with the same number of available green cards per fiscal year.
However, the NIW process for STEM graduates, coupled with the ability to self-petition, allows the foreign national a more accessible pathway and ability to get a place in line for a green card earlier.
Foreign nationals considering applying for a national interest waiver should consult with experienced immigration counsel to learn more about the process and discuss eligibility.