On January 21, 2022, U.S. Citizenship and Immigration Services announced updated guidance on adjudicating requests for “National Interest Waivers” of the job offer and labor certification requirements for certain advanced degree professionals and individuals of exceptional ability. This guidance includes a new emphasis on the unique considerations involving persons with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs.
An employer seeking to hire a noncitizen must generally obtain a permanent labor certification from the Department of Labor that proves there are no qualified U.S. workers for the position they are seeking and that their employment will not adversely affect similarly employed U.S. workers. The noncitizen advanced degree professional or individual of exceptional ability may, however, seek a waiver of a job offer and labor certification requirement by filing a self-petition I-140 Visa Petition (without a job offer) if they can show that their stay in the U.S. is in the National Interest.
Individuals seeking a national interest waiver must show evidence of an advanced degree or exceptional ability, and must also meet three factors that USCIS uses to determine, in its discretion, whether it is in the national interest that USCIS waive the requirement of a job offer, and thus the labor certification. The three factors (or “prongs”) USCIS considers for a national interest waiver are whether:
- The person’s proposed endeavor has both substantial merit and national importance;
- The person is well positioned to advance the proposed endeavor; and
- It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.
Significantly, the new policy specifies that many proposed endeavors aiming to “advance STEM technologies and research, whether in academic or industry settings,” may be considered as having national importance. It also recognizes the importance of “critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security” and highlights “research and development-intensive industries.”
The new policy further states that USCIS considers an advanced degree in a STEM field tied to the proposed endeavor “an especially positive factor” in its determination. USCIS has added guidance to weigh an applicant’s engagement in a critical STEM field (advanced STEM degree, working in a STEM area important to U.S. competitiveness, and well positioned to advance the endeavor) as “strongly positive.”
The new policy also states that letters of support from interested government agencies or quasi-governmental entities (e.g., federally funded research and development centers) submitted as evidence can be particularly helpful to support an NIW petition.
For more information, please see https://www.uscis.gov/newsroom/alerts/uscis-updates-guidance-on-national-interest-waivers.