TBE

TBE

The National Interest Waiver Program

***The National Interest Waiver Rules have been updated since this article was written.  Please see A Step in the Right Direction for the National Interest Waiver for more information.***

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June 30, 2011

Normally, individuals who try to get green cards through employment need to go through the often lengthy and difficult process of labor certification.  This process requires first that the foreign national (the employee) have an employer who is willing to take up the responsibility of sponsoring the foreign national and pay for a large portion of the costs.  The process also requires that the employer advertise the position in a variety of media to see if there are any qualified Americans who may want the job.  If there are, the case cannot proceed.  

One of the ways to avoid labor certification for Second Preference cases is through the "National Interest Waiver" (NIW) program.  This program is a way for certain individuals possessing exceptional ability in the sciences, arts or business to immigrate to the US without having to go through labor certification and without requiring employer sponsorship.

The purpose of the NIW program is to provide a "short-cut" for individuals who have exceptional ability, who work in a field of "substantial intrinsic merit" and whose work will be providing a benefit to the country as a whole (rather than just a local community, state or region for example).  The principal criteria, therefore are that 

• the applicant has "exceptional ability in the sciences, arts or business,"

• the applicant seeks employment in an area of substantial intrinsic merit, 

• the benefit will be national in scope, and 

• the national interest would be adversely affected  if a labor certification were required. 

The foreign national may "self-petition" meaning that he/she rather than an employer signs the I-140 petition on his/her own behalf.  An employer is not required to "sponsor" the foreign national or sign the petition.  (However, keep in mind that proof of employment in the field is a big part of proving eligibility for NIW).

What is "exceptional ability"?

Exceptional ability means "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business" in the language of the regulation.  

The regulation lists the types of evidence necessary to prove exceptional ability, and states that the applicant must have at least 3 of them: 

• relevant degree, certificate or similar award from an institution of learning;
• letters from current and former employers showing at least 10 years of full-time experience in the field; 
• relevant license or certification; 
• evidence of salary or other remuneration indicating exceptional ability; 
• evidence of membership in professional associations; and/or 
• evidence of recognition for achievements and/or significant contributions by peers, governmental entities, or business/professional organizations;

If these standard do not readily apply, the regulation allows the applicant to show "other comparable evidence" to establish he/she has exceptional ability. 

What is an area of "substantial intrinsic merit"? 

Some of the areas that have been determined to be areas of substantial intrinsic merit include: 

• improving the US economy,

• improving wages and working conditions for US workers, 

• improving education and programs for US children and underqualified workers, 

• improving healthcare, 

• providing more affordable housing, 

• improving the US environment and making more productive use of natural resources, and 

• interested government agency request.  

 In practice, substantial intrinsic merit has been found in fields ranging from coaching to medical research to television reporting.  

What is a benefit that is national in scope?

The benefit must to the country as a whole, rather than a locality, state, region, etc.  In other words, there must be an appreciable impact on the national economy, society, etc.  So, for example, a special education teacher, although working in a field that probably has a great deal of "substantial intrinsic merit," does not really provide a benefit that is national in scope.  Rather, the benefit is primarily limited to the community in which he/she is working.  Therefore, it is likely that type of position would not qualify for the NIW program.  On the other hand, a researcher in the field of special education who publishes his/her studies to a national audience of education researchers, would be more likely to meet the "national in scope" criterion. 

How may one determine if the national interest would be adversely affected  if a labor certification were required?

This criterion is a bit more difficult than the previous two, in that it really requires looking at two other questions: 

• would the foreign national’s services serve the national interest to a substantially greater degree than would an available US worker having the same minimum qualifications?, and

• does the foreign national demonstrate such service by a record of achievements with some degree of influence on the field as a whole?

The answer to both questions must be "yes" for the case to be approved.

To succeed with the first question, it is necessary to show that the foreign national is not only more qualified than the majority of Americans working in that same type of position, but that he/she is at the top of his/her field.To succeed with the second question, it is necessary to show that the foreign national has had a track record of success in the field, and has had a degree of influence on his/her field as a whole.  (It should be clear that these two questions are really inter-related, since it is difficult to prove the likelihood of future success without showing a track record of past success). 

Taking the special education researcher example again, it would be necessary to show that he/she is at the top of his/her focus of research (this does not require that he/she be the top special education researcher, but he/she must be at the top of his/her particular subset of focus in special education), and that he/she has had a demonstrated track record of success with his/her research influencing other researchers in that field.

How is it possible to prove all these things?

Typically, the core of evidence for NIW cases is the "expert opinion letters" provided by experts in the field that support the argument that the foreign national meets all these criteria.  Although there is no minimum number of letters, generally speaking the more the better.  A good rule of thumb is no less than 10, but some cases may require more. 

While it is very likely that a good portion of these letters will come from former or current co-workers and/or supervisors, it is important to know that USCIS will give much more weight to letters from those who do not know the foreign national personally, as these are more likely to represent unbiased opinions.  USCIS may even request additional letters from "unbiased" experts if there are too few in the initial submission.  Since the evidence that is submitted must closely address each criteria for NIW eligibility, it is important that the letters speak to each factor in turn (or as many as relevant for the expert). 

Other forms of evidence include proof of an advanced degree in the field; salary commensurate with position; awards or prizes; merit-based association or society memberships; published materials in professional publications written by others about the foreign national; participation as a judge of the work of others in the same or similar field; original scientific or scholarly contributions; and/or authorship of scholarly books or articles in scholarly journals with international circulation.

Of course, there are many more details involved in getting an NIW case approved, but this has given you a nutshell version of what the program entails.  We have successfully handled many NIW cases, and would be more than happy to discuss this further if you feel you may be eligible. 

FOR MORE INFORMATION:

Contact us at 410-719-1501.

 

Comparison of the Fiancé and Marriage-Based Visa Processes

We often get the question – which is better, to get married abroad, or get married in the US?  This question boils down to what is 

• quicker
• cheaper
• easier
• better

a fiancé visa or a spousal visa?

There is one process for the fiancé visa, and two options for the spousal visa, for a total of 3 options available for those who are not yet married and trying to decide which way is best for them.

The following is an attempt to give you an ESTIMATE of the various factors involved in each of these processes, in order to assist your decision as to which one to use. 

It is important to note that this article ONLY applies to cases where the foreign national fiancé is abroad.  If he/she is already in the US, then it is often possible to simply get married in the US, and file an I-485 green card application case.  It also should be clear that if you are already married, you are not going to be able to do the fiancé visa case, and are left with only two choices.  

This article also does not cover cases where the I-130 petition is filed with the consular post abroad.  This option, in our experience, is not a commonly available as it typically requires the petitioner to be resident in the foreign country where the consular post is located.

Finally, the following analysis assumes that the petitioner is a US citizen.  In fact, two of the processes (the K-1 and K-3 processes) require the petitioner to be a US citizen.  On the other hand, the Spousal Immigrant Visa does not.  It also allows permanent residents to be petitioners as well as US citizens.  HOWEVER, spousal petitions filed by permanent residence generally have a multiple-year waiting period due to the visa backlog.  For that reason, we are not considering them here, as the purpose is to compare and contrast 3 relatively similar (in terms of important considerations noted above) processes. 

The various factors we will consider are:

• filing fees
• time between case start and admission to US
• time between case start and permanent residence
• time between admission and work eligibility
• time between admission and ability to travel abroad
• petitioner travel requirements
• number of interviews required
• number of medical exams required
• treatment of stepchildren
• forms required-total number of form pages involved 

These are not all the considerations that one may need to take into account, but they are some of the most important, in our experience. 

Filing fees (current as of 2018):

Fiancé K-1 Visa case filing fees total $2025.  This includes the

• I-129F – $535
• DS-160 – $265
• I-485 – $1225

Spousal K-3 Visa case filing fees total $2025.  This includes

• I-130 – $535
• DS-160 – $265
• I-485 – $1225

Spousal Immigrant Visa case filing fees total $1200.  This includes

• I-130 – $535
• DS-260 – $325
• I-864 review fee – $120
• ELIS fee - $220

The Spousal Immigrant Visa wins this factor, with the other two methods tied for second.

Time between case start and admission to US (based on Vermont Service Center processing times):

Fiancé K-1 Visa case requires about 6 1/2 months.  This includes

• I-129F approval – about 5 months
• K-1 visa approval – another 1 1/2 months

Spousal K-3 Visa case requires about 7 months.  This includes:

• I-130 receipt notice – about 1/2 month
• I-129F approval – another 5 months
• K-3 visa approval – another 1 1/2 months

Spousal Immigrant Visa case requires about 10 months.  This includes:

• I-130 approval – about 8 months
• Immigrant Visa – another 2 months

Often what is most important is reuniting with your loved one.  With this factor in mind, the Fiancé visa comes in ahead, with the Spousal K-3 visa a close second.

Time between admission and permanent residence: 

Both the Fiancé K-1 Visa and Spousal K-3 cases require about 4 additional months after admission into the US. 

This is where the big benefit of the Spousal Immigrant Visa comes in.  In this case, the foreign national becomes a permanent resident immediately upon admission and does not need to apply or interview again (until the removal of conditions petition and/or citizenship application a few years down the road). 

Time between admission and work eligibility:

There has been some confusion over the K-1 visa holders work authorization.  Technically, the K-1 visa holder is eligible for work authorization right away as an "incident to status."  However, regulations pertaining to employers' verification responsibilities require additional documentation of work authorization in the form of an EAD (Employment Authorization Card also called a "work permit.").    Therefore, for practical purposes, the K-1 holder must usually have an EAD in order to work for an employer.  It is possible for a K-1 holder who has not yet filed the I-485 green card application to file an EAD application (Form I-765), but they take about 80-90 days to process, and expire upon the expiration of the K-1 visa status.  Since the K-1 visa status expires 90 days from admission, the end result is an EAD that is only good for about 10 days at the most.  So, practically speaking, the K-1 visa holder should plan on getting married, and filing the I-485 green card application as soon as possible.  The I-765 work permit application may be filed at the same time, and take about 80-90 days to process.  So, with all this in mind, the K-1 should expect work eligibility 80-90 days after filing the I-485.

The Spousal K-3 visa holder is in the same position as the K-1 in this respect; i.e., he/she should plan on not having work authorization until 80-90 days after the I-485 is filed.

For someone admitted as a Spousal Immigrant, work authorization is immediate.  As a permanent resident, he/she may work anywhere any other green card holder may work.

Time between admission and ability to travel abroad:

The Fiancé K-1 visa is single entry, and so before he/she can travel abroad again, it is necessary to wait about 80-90 days after the filing of the I-485 in order to get Advance Parole.  (Advance Parole is permission to return to the US while your green card is pending, and an Advance Parole Application – Form I-131 – is usually filed at the same time as the I-485).

The Spousal K-3 visa is multiple entry, valid for 2 years, and an Advance Parole is not required while the visa is still valid.  So a K-3 may travel virtually immediately upon admission in K-3 status.

The Spousal Immigrant may travel abroad virtually immediately after admission as a permanent resident (this article does not discuss the implications of extended or frequent international travel for permanent residents).

Petitioner travel requirements:

The Fiancé K-1 visa requires the petitioner and beneficiary to have met each other (i.e., been in each others' physical presence) within 2 years prior to filing the petition (exceptions exist in some cases).

Both the Spousal K-3 and Spousal Immigrant Visa require the parties to have been in each others presence either at the marriage or sometime thereafter prior to the filing of the petition.  (A marriage where the parties are not in each others' presence is termed a "proxy marriage."  If a proxy marriage is valid in the country in which it is performed it is generally considered valid by USCIS provided the parties have since consummated the marriage prior to filing the petition).

Number of interviews required:

Both the Fiance K-1 and Spousal K-3 are interviewed at the consular post.  There is also the possibility of another interview with USCIS prior to the adjudication of the I-485 (although this is not currently standard practice).

The Spousal Immigrant Visa requires a single interview a the consular post. 

Medical exams: 

Both the Fiance K-1 and Spousal K-3 are required to get a medical exam prior to visa issuance, but are not required to complete any of the vaccination requirements until the green card process begins in the US.  Essentially this means that, unless the applicant has completed the required vaccinations at the time of the medical exam abroad, he/she is probably going to need another  medical appointment in the US, for a total of two.   

The spousal immigrant takes care of all entire medical exam requirements, including vaccinations, abroad prior to issuance of the immigrant visa.

Stepchildren of petitioner:

The Fiance K-1 visa process allows for unmarried children of the beneficiary who are under the age of 21 to obtain "derivative" visas to accompany or follow the principal beneficiary, and may adjust status based on the parent/step-parents' marriage even if the marriage occurred after the child's 21st birthday.)

The Spousal K-3 visa process and the Spousal Immigrant Visa process treat stepchildren a bit differently than the Fiance K-1 process.  In order for the stepchild to immigrate with the principal beneficiary, the stepchild must have been under 18 at the time of the petitioner and beneficiary's marriage.  As long as that occurred, then the stepchild may otherwise immigrant as a derivative prior to his/her 21st birthday. (The Child Status Protection Act applies to Spousal Immigrant Visa cases, and may reduce the child's age for purposes of determining age-out in those cases). 

It is also important to note that, under the Spousal Immigrant Visa process, the US citizen petitioner must file a separate I-130 petition (and pay the required filing fees) for each stepchild.

Forms and form pages required:

The Fiance K-1 Visa process takes a total of 7 forms with a total of 72 pages.

The Spousal K-3 Visa process takes 9 forms for a total of 90 pages. 

The Spousal Immigrant Visa process requires a mere 4 forms with a total of 36 pages.

Conclusion:

Of course individual cases may vary, but generally the best option for most of the factors is the Spousal Visa.  Where the Spousal Visa falls short, however, is usually one of the most important factors for most people – quickly reuniting with loved ones.  In those cases, either the K-1 or K-3 processes would be best.

The clear winner in cases where there are stepchildren who are nearing the age of 21 is the K-1 Fiance Visa process, which allows for the stepchild (or "stepchild-to-be") to immigrate even when the marriage occurs after the stepchild turns 21. 

As noted above, there are numerous factors that are not considered here, but we hope this has given you an idea of the things to keep in mind when deciding which way is best for you.  For additional questions or to discuss your particular case, please contact us at 410-719-1501.

 

	K-1 + Adjustment (Option 1)	I-130 + K3 + Adjustment (Option 2)	Spousal Visa (Option 3)	Best option when this factor is most important
Filing Fees	$2025	$2025	$1200	3
Time Frame to enter	7 mos.	7 mos.	12 mos.	1 or 2
Time Frame to green card	+ 4 mos.	+ 4 mos.	+ 0 mos. (permanent resident upon entry)	3
Work authorization	120 days after filing I-485	120 days after filing I-485	immediately upon entry	3
Travel flexibility	120 days after filing I-485	immediately upon entry	immediately upon entry	2 or 3
Petitioner travel requirements	Must have seen beneficiary in person within past 2 years	Must have been in beneficiary's presence during or after marriage	Must have been in beneficiary's presence during or after marriage	depends
Interviews	1 or 2	1 or 2	1	3
Medical exams	2 – 1 abroad and 1 in US	2 – 1 abroad and 1 in US	1 – abroad	3
Stepchildren	Must be admitted in K-2 status prior to age 21, but may adjust status after age 21	Parent's marriage must have occurred prior to age 18, and must adjust status prior to age 21.	Parent's marriage must have occurred prior to age 18, and must adjust status prior to age 21 (Child Status Protection Act applies and may reduce child's age in some cases).  Requires separate petitions for each child.	1
Forms required	I-129F – 13 pages I-134 –8 pages DS-160 – 11 pages I-485 – 18 pages I-864 – 10 pages I-765 – 7 pages I-131 – 5 pages Total: 72 pages	I-130 – 12 pages I-130a – 6 pages  I-129F – 13 pages I-134 –8 pages DS-160 – 11 pages I-485 – 18 pages I-864 – 10 pages I-765 – 7 pages I-131 – 5 pages Total: 90 pages	I-130 – 12 pages I-130a – 6 pages DS-260 – 8 pages I-864 – 10 pages Total: 36 pages	3

 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FOR MORE INFORMATION:

Contact John Byrley at tel: 410-719-1501.