USCIS Issues Updated Guidance on National Interest Waivers

On January 21, 2022, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance on adjudicating requests for “National Interest Waivers” concerning job offers and labor certification requirements for certain advanced degree professionals and individuals of exceptional ability. In addition, the guidance includes unique factors for USCIS to consider for people with advanced degrees in science, technology, engineering, and math (STEM) fields and entrepreneurs.

USCIS Seeks to Remove Barriers to Legal Immigration

In his Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, President Biden reinforced his Administration’s goal of removing barriers to legal immigration. To carry out that goal, USCIS is giving additional clarification and guidance on how STEM graduates and entrepreneurs might use the national interest waiver. This guidance also explains the significance of letters from governmental and quasi-governmental entities to support the applicants.

How National Interest Waivers Work

Typically, an American employer that wishes to hire a noncitizen first must obtain a permanent labor certification from the U.S. Department of Labor proving that:

  • There are no qualified U.S. workers for the position they are seeking; and
  • Their employment will not adversely affect similarly employed U.S. workers.

However, non-citizens can seek a waiver of a job offer and the labor certification requirement if doing so would be in the interest of the United States. Additionally, these noncitizens can self-petition using Form I-140, Immigrant Petition for Alien Worker.

Those noncitizens who apply for a national interest waiver must show that they have an advanced degree or exceptional ability and meet three other factors. USCIS uses the following factors to determine whether it is in the national interest that it waive the job offer and labor certification requirements:

  • The noncitizen’s proposed endeavor has both substantial merit and national importance;
  • The person is well-positioned to advance the proposed endeavor; and
  • It would benefit the United States to waive the job offer and thus the permanent labor certification requirements.

Special Considerations for STEM Graduates

The new guidance for STEM graduates emphasizes the need to recognize and foster “critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.” USCIS officers must consider evidence from all sources, including governmental, academic, and other authoritative and instructive sources, to identify critical and emerging STEM fields.

Overall, the evidence must show that the STEM endeavor of the applicant has “substantial merit” and “national importance.” In addition, the person’s education and skillset indicate whether the person is well-positioned to advance the proposed endeavor. Finally, having a Ph.D. degree in a STEM field tied to the proposed endeavor is an especially positive factor. Letters from governmental and quasi-governmental entities can supplement an application for a national interest waiver and help support all three of the above factors that USCIS considers in determining whether to grant such an application.

Special Considerations for Entrepreneurs

The new guidance concerning national interest waiver applications for entrepreneurs states that USCIS officers may consider that many entrepreneurs do not follow traditional career paths. It also acknowledges that there is no single way to structure a start-up entity. The guidance designates the following types of helpful evidence that entrepreneurs may submit in support of their national interest waiver requests:

  • Evidence of ownership and role in U.S.-based entity
  • Degrees, certifications, licenses, and letters of experience
  • Investments
  • Incubator or accelerator participation
  • Awards or grants
  • Intellectual property
  • Published materials about the entrepreneur, their U.S.-based entity, or both
  • Revenue generation, growth in revenue, and job creation
  • Letters and other statements from third parties

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