Immigration Insights: Understanding the National Interest Waiver (NIW) Green Card Category

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Meagan Dziura: Hi, all, and welcome to an Immigration Insights episode of the Ogletree Deakins podcast. I’m Meagan Dziura, and today I will be asking the question, what is the deal with the NIW? I’ve invited Ogletree shareholder Jamey Petri to talk about the National Interest Waiver green card category with me and to discuss why the NIW is a big topic amongst immigration practitioners now. I’m an associate in the Raleigh, North Carolina office. Jamey is a shareholder in our Austin office. Jamey, thank you so much for being here.

Jamey Petri: Yeah, thanks for having me, Meagan. I’ve been looking forward to doing an episode like this for quite some time and looking forward to talking more about the National Interest Waiver with you and our listeners.

Meagan Dziura: Thanks so much. The National Interest Waiver, or NIW as it’s abbreviated, has been all the rage, specifically this year. And to many immigration practitioners, especially in business immigration, which is what we practice, it feels like it kind of popped out of nowhere. But before we even get started on this specific type of green card, which is what the NIW is, I think we may need to give a very, very high-level overview of how someone can get a green card in the US, because I think it’s much more complicated and definitely not as easy as most people believe it to be.

Jamey Petri: Or believe it should be for that.

Meagan Dziura: Yes, exactly. So how can you even get a green card in the US? Say I’m from Poland and I want to come to the US and become a legal permanent resident, which is LPR, which is what a green card holder is. Can I just write to the government or fill out a form and apply? What do I do?

Jamey Petri: Oh, if only it were that simple, Meagan. It is a very complex and sophisticated process. There are several steps involved. High level, the US green card process kind of divides up into one of two paths. You could do a family-based path or you could do an employment-based path. Now, there are other paths, but I think I want to keep this as simple as possible for the purposes of our discussion today. But typically, it’s a two or three-step process that spans multiple years, and that’s regardless of whether you are in the employment-based path or the family-based path. But essentially, that’s the first decision you have to make. Am I going to go the family-based route? Do I qualify for that route? If not, do I qualify for the employment-based route, and what’s involved in that pathway?

Meagan Dziura: Okay, so, for example, say, again, I’m Polish. I’m 35. I’m living in the US, but just as a foreign national. I’m working for my employer, so they sponsored me for a visa that gives me work authorization, let’s just say H-1B, which is, as a lot of people know, kind of the bread and butter of business immigration. The majority of our clients use a lot of H-1Bs. So the H-1B, typically limited for a specific number of years, but I want to live in the US permanently. So can I just then apply for a green card? Because I’m already here. I’m working. My employer sponsored me for a work visa. Can I now just fill out a form?

Jamey Petri: It depends. The token lawyer answer I’ll give you, it depends. It depends on if you have any family members that you might be able to utilize that family-based path or if you are going to look at an employment-based path. So tell me about yourself. Do you have family members that are US citizens?

Meagan Dziura: Yes. So I have a 30-year-old sister that became a US citizen a few years ago. Can she sponsor me as a family member? How long… Is that like a one-year? Can I wait one year and I get a green card?

Jamey Petri: Yes. Unfortunately, the answer is you can’t wait one year, but there is a line established for different types of green cards, for different categories of green card pathways. We refer to this as the Visa Bulletin. The Visa Bulletin is published monthly by the Department of State. They run the numbers. Each green card pathway or green card type is usually limited. There’s a congressional quota or cap on the amount of those. Immigrant visas is another word we use to say green card. So there’s a limit on how many of those can be pursued a year based on which category, so the way in which you’re applying, but also by your country of birth, specifically where you were born versus your nationality. Maybe you’re a Polish citizen and you’re born there, but perhaps you have another passport for a different country, if you lived and worked there and acquired citizenship there. It’s going to be limited to your country of birth.

So every month, the Department of State publishes several charts. And these charts are made up, obviously, of an X and Y axis. They’re divided up by employment base versus family base. As an immigration attorney, you’re trained at a very early point in your career to read these and decipher kind of who can do what. Essentially, they represent the line for a green card. And in the family-based realm, the different types of categories start with the letter F for family. So that’s very useful. Unfortunately, after that it gets quite confusing.

But there are different categories for family-based green cards, whether you are a spouse of a US citizen, whether you are a son, daughter, or immediate relative of a US citizen, or there’s a separate category for green card holders. So once you become a green card holder, you could possibly sponsor someone. And then there’s also brothers and sisters of US citizens, which it sounds like that’s where you would be. Unfortunately, right now, that line is incredibly long. You would have to kind of start the process now and be waiting about, let’s see, I’d say at least 10 years, maybe closer to 15 years at this point.

Meagan Dziura: Wow.

Jamey Petri: Yeah, the overall process is a three-step process. Your family member would petition for you on an I-130. So that’s the petition step. Then, once that petition was approved, you would have to wait until the Visa Bulletin announced that you were available to file for that third step of your actual green card application. So a three-step process with a family-based pathway.

Meagan Dziura: Okay, so not always so easy, not so quick.

Jamey Petri: No.

Meagan Dziura: Okay, what about if the facts are the same but my sister and I, we had a huge rift, so she refuses to sponsor me, but my employer wants to sponsor me so they can employ me long-term. What would the employment sponsorship path look like for a green card?

Jamey Petri: Yeah, that’s an excellent question. So it is also routinely a three-step process, similar to a family-based process. The first step of the process, which is not always required but does take a very long time to achieve or complete, is called PERM, P-E-R-M. That is an acronym for an online system, but it’s nice because it also is the first four letters of permanent residency. So PERM is the first step of the employment-based green card process. The takeaway here for purposes of our conversation today is it’s going to take about two years, start to finish, to complete that step. Then, once you complete that step of PERM, which does require a test of the US labor market, where your employer will have to post your job, essentially, in certain types of media, including newspapers, on their website. They’ll have to invite US workers to apply. They’ll have to review the applicants and then determine whether they can file your case.

In order to file your PERM case, they will have to determine that none of the available US workers met the minimum requirements for your position. That gets you to PERM filing. That takes about a year. There are a couple of pre-filing steps in addition to that labor market test. One specific step’s called the prevailing wage certification, where you submit the requirements of your job to the Department of Labor. Again, the Department of Labor controls this first step of the employment-based process. You submit that, and then they will tell your employer the minimum payment or the minimum annual salary that needs to be applied. So that plus the labor market test gets you to about a year when you submit to the Department of Labor. And then the Department of Labor takes their sweet time, as we like to say, and reviews those PERM applications. Right now, they’re taking 13 to 14 months, that’s right, I said months, to review those applications. So you’re looking at a two-year process to even get to the petition stage.

The petition stage is very similar to the petition stage of the family-based process. Slightly different form number, I-140, for employment-based petitions. That’s where USCIS, Citizenship and Immigration Service, takes over the employment-based green card process. And then from there, you would file that petition, and then, depending on your visa bulletin every month, determine when you could file that last and final step, your green card applications.

Meagan Dziura: So an extremely long process and, I think you mentioned this in the beginning with the PERM, the aim is to protect US workers. So a huge part of the entire PERM process is demonstrating that the job that the employer is trying to sponsor a foreign national for is not able to be filled by a US worker. So what about if an employer has someone who is themselves special, they have a special skill or they are at the top of their field. What are the options if they already know no one else can do this job? What are the paths available for those individuals?

Jamey Petri: Yeah, that’s an excellent question. So I mentioned that that first step of the green card process for employment-based green cards, the PERM step with the Department of Labor, is not always required. If you have certain positions or certain people, employees, that you can demonstrate meet specific requirements to show that they have extraordinary ability in the sciences, arts, education, business, or athletics, they’re outstanding researchers, or that they’re a manager that have managed for your either subsidiary or affiliate company abroad and are now managing the United States, that’s called a multinational manager case, you can skip that first step, that two-year step with the Department of Labor.
Additionally, the National Interest Waiver sits nicely in this portfolio of types of green cards where you don’t have to test the US labor market, you don’t have to work with Department of Labor, which is a huge deal, because they can be quite difficult to work with, and you could just skip that process and go straight to the petition process. So the National Interest Waivers, they provide a lot more flexibility. Since we’re focusing our discussion today on those, I will kind of just go into more about that type of petition.

With the PERM-based process, any change in your job, any material change in your role, since that PERM-based process is focused on the position versus the person in that role, could trigger a restart. However, the National Interest Waiver is focused on an endeavor and the person that is pursuing that endeavor versus a job offer or a job opportunity. So this gives you a lot of flexibility as far as what you’re doing, where you’re performing your job duties, your salary, things of that nature, and then you get to skip that Department of Labor step, which is really crucial. It will cut two years off of everyone’s wait time, assuming that your National Interest Waiver is approved. You just have to continue to work in your area of expertise after that National Interest Waiver petition is approved.

We’ll go into the requirements of that, but very flexible, saves you lots of time at the beginning of your process, and you also get the same benefits from a National Interest Waiver I-140 petition approval as you would from a petition approval based on a PERM, meaning that you can extend your non-immigrant visa, which may be limited to the amount of years you can stay in the United States. With a National Interest Waiver approval on the I-140, you can extend that. You can get other AC21 extension benefits. Usually that results in, with that H-1B you mentioned earlier, being able to extend for three years at a time until you are ready to file your green card per that monthly visa bulletin. And it also will provide work authorization for H-4 spouses, which is a huge deal, and that also is a benefit attached to the approval of a National Interest Waiver petition.

Meagan Dziura: So I see now why this is so attractive, so why, for those working in the field, extraordinary ability and outstanding researchers have huge array of categories that you have to check off with USCIS. Multinational executive managers, those are really restricted to people who, as Jamey mentioned, worked abroad and then came to the US working also in a managerial role. So they have really specific criteria that they have to fill. So I see why the National Interest Waiver is so attractive to both individuals and companies, but what are the things that you need to prove in order to get a National Interest Waiver? Is it as difficult as the outstanding researcher where you have to have a PhD and potentially hundreds of citations? What are they really looking for when USCIS is looking at these petitions?

Jamey Petri: Excellent question, Meagan. Let’s talk a little bit about the National Interest Waiver and the requirements. Without going too far back in history, the current standards that USCIS uses to adjudicate these petitions comes from a case called Matter of Dhanasar. Matter of Dhanasar set up a three-pronged test for a National Interest Waiver. So high level, you have to argue to the United States Immigration Service that you have a proposed endeavor, that that proposed endeavor has both substantial merit and national importance, that the employee, so the person that we’re sponsoring, so in our hypothetical, you, Meagan, are well-positioned to advance that endeavor, and that, on balance, it would benefit the United States as a nation to waive the requirements of a job offer and the labor market test, or that PERM step. So we have to convince via written argument that it is in the nation’s best interest to allow us to skip that labor market test to get to this green card milestone or finish line faster.
So a little bit about those three prongs. Your endeavor can be defined as specifically or as generally as you like, right? It’s nice that this National Interest Waiver pathway allows for a lot more nuanced legal argument versus that kind of three-step traditional PERM process, which is very much like you check the boxes. The National Interest Waiver allows you to produce memorandum that will outline your endeavor and then make arguments that it has substantial merit and national importance.

The Biden Administration has made several publications inviting, sending a signal to companies and people out there to submit these types of petitions saying that, “Hey, we have a real need for STEM workers, for people who are educated in STEM fields, and so we think that the STEM occupations likely have substantial merit and national importance.” So that’s a really kind of easy or low-level prong to meet, because we can use publications from the government about critical and emerging technologies, about the focus of the government on STEM and kind of say, “Hey, USCIS, here’s what the administration has said, and we think that this fits nicely into that.”

The second prong about being well-positioned really focuses on the employee themselves. This is where you’re going to look at your background, your work experience. You have to be really careful here not to tie you to your petitioning company too explicitly. We want to talk about the broad range of experience you’ve had, not only your education, but also the types of companies you’ve worked for. Have you started your own companies? In this endeavor, in this broader field, where are you positioned, and are you positioned in the future to continue to contribute? This petition is all about making promises for the future. So we are saying, “Prospectively, give this person the green card faster. They are going to continue to contribute to this endeavor and benefit the United States economy as a whole or the United States competitiveness in this endeavor as a whole.”

And then the third prong is a little bit more subjective, and we do see that the US government is pushing back on this third prong quite a bit, saying that, “Hey, it would be beneficial to the United States to waive that PERM step, waive the labor market test. Given the endeavor, its importance to the country, given this person and their history and what they’ve been doing, it would be beneficial to the United States to allow them to waive,” that’s the waiver part, national waiver, “to waive the labor market test requirement and issue a green card on a swifter cadence.” This last prong, we’re really focused right now on showing that the endeavor has the potential to support something like US national security, cybersecurity, safety, enhancing the United States’ economic competitiveness. Creating jobs is a big deal with this last prong.

So it is a very sophisticated analysis and it does take a lot of time, not only for the immigration attorneys who are preparing these cases, but for the visa beneficiaries, like yourself, Meagan, in our hypothetical. It’s going to take some time for you to work on this with us and make sure that we have a very strong, robust argument so that when we submit, we have the best chance of approval.

Meagan Dziura: So you mentioned some publications by the Biden Administration. Have there been actual laws that changed? Why do we hear so much about NIWs right now, essentially this year? So did a regulation change? What shifted sort of everyone looking at this category to solve some labor shortages?

Jamey Petri: Yeah, that’s a really good question, and there are a variety of things that have contributed to kind of the National Interest Waiver becoming in vogue, if you will. Not only have there been publications from the administration, there have been some updates USCIS has made to its guidance, its playbook, if you will, about how it’s going to look at these types of petitions. We also took that in the legal community to be a recommendation to utilize this kind of historically underutilized pathway to a green card.

Also, there’ve been quite a bit of layoff activity. Lots of large companies and small companies have let people go and had to have reductions in force. The National Interest Waiver does not hinge on that type of scenario, whereas that traditional PERM process does, in fact, cannot proceed. If a US company has laid off US workers, they are not allowed to sponsor foreign workers for that part of the green card process for a period of time after that layoff. This National Interest Waiver is what I call RIF-proof. It does not have anything in it that prohibits or prevents you from filing even if there have been layoffs at your company or in the industry. You may have to address that in the initial filing, but, no, there’s been no changes to the laws.

Some of our podcasts that we’ve put out recently have really hit the nail on the head, which is that US immigration law has not really changed at its base for many, many years. What has changed are adjudication standards, the way that the administration and the agencies that govern this process are looking at these things. And we’ve taken, in the last 18 months to two years, hints from those different areas and really kind of leaned into this National Interest Waiver and had some really great success getting folks an approval in this category and been able to skip that very painful process of PERM for them and for their companies.

Meagan Dziura: It’s interesting you mentioned that it’s really been the past 18 months, two years, and it’s been just sort of the USCIS administration a little bit, but then USCIS changing the way that they’re adjudicating things. And we’ve even seen this with clients I work with that are filing NIWs. We even see within the past six months some shifts in how USCIS is adjudicating these NIWs. We see hints from it because they issue requests for evidence, which is essentially USCIS coming back after you file a petition and say, “Hey, we need more information about this prong for the NIW,” or, “We don’t think you quite made this argument. What else can you tell me about this case?” So I think even in this short span in the span of all immigration work, like this really short span of two years, we’ve seen the USCIS actually change as well. So you have to adapt all the time about what’s changing, and it’s not actual laws that are changing.

Jamey Petri: They’re also not sending you a note to tell you that they’re going to tighten up or become stricter.

Meagan Dziura: Right, yes.

Jamey Petri: We certainly in the last six months, I would say, have seen a tightening, if you will, a more strict adjudication process. We are publishing and recording this podcast post-election night. So we do expect a new administration to come into power in January. Certainly, that is going to impact this category. We’re unsure exactly in what way it will. That remains to be seen, but we do still feel like this category is ripe for use in the future and should not be kind of discounted the way it has been in the past, because it is a really nice place for people who are experienced, right? They have education. They have a rich work history. Maybe they’re not PhDs, maybe they are, but maybe they’re in an industry or an endeavor that isn’t so simple, so straightforward, scientific. This is a place where people can really make their best argument to USCIS. And frankly, the PERM process does not permit argument. The PERM process is a process.

Meagan Dziura: Yeah, right.

Jamey Petri: It is a checklist. So this is going to be a category that’s available moving forward. We don’t anticipate that a new administration is going to write it out of law. So I do think that companies do need to be more thoughtful about how they’re looking at the green card path for their employees. Definitely count this in, right? At least look at this. Assess viability with your immigration attorneys and providers. It’s not always going to be the best way forward, but it really has been working and I do think will continue to work. I just think the bar may be raised. We may see more and more RFEs with the new administration. And as you mentioned, we’ve already kind of seen that happening. Also really important on this, there’s no quota on these. The government does not have a cap on how many of these they can approve a year.

Meagan Dziura: Right.

Jamey Petri: Now, they do decide, I think, at some point, when they get tired of reviewing them.

Meagan Dziura: Right.

Jamey Petri: These are very kind of thick stacks of paper we’re sending to US immigration, because US immigration still takes paper in.

Meagan Dziura: Crazy.

Jamey Petri: But yeah, I mean, I think this is a really viable option and it should be discussed. You should dig in a little bit about what it requires. And it is a good alternative or complement, frankly, to the PERM process. If you have someone who is running out of time on their H-1B and that PERM process you know is going to take a long time and has that labor market test variable, you may decide to try both simultaneously. In the amount of time that it takes to do a PERM and get the PERM response, you can file an NIW and know whether that is going to be approved or not and still have [inaudible 00:24:06].

Meagan Dziura: Right, correct.

Jamey Petri: So think about that when, any of you who are stakeholders or decision-makers at a company, think about your ROI, frankly, on this process.

Meagan Dziura: Yeah. No, that’s a great point. And then really quickly before we wrap up, is the NIW… You mentioned STEM categories, but what about actual industries that the person is working in? Does it limit what industry? So say they’re a scientist. They don’t have a PhD, but they’ve been working in green energy for several years. They have an endeavor that’s tied toward green energy. But, does it have to be the company itself? Does it have to be like a solar panel company? Or, what are the industries that we’ve been seeing success with?

Jamey Petri: Yeah, well, certainly, I mean, you want some sort of nexus to the industry, because your background and showing that you’re well-positioned to advance that endeavor, it needs to have some relationship. But no, the field is open here. I think the takeaway is we’ve seen lots of success obviously in tech with the AI cybersecurity space. We’ve seen manufacturing, if you have a safety argument to make, things of that nature. Financial services, we’ve seen success with those because managing mortgage-backed securities. Most people remember the mortgage crisis.

Meagan Dziura: Right.

Jamey Petri: I think that the field is open. You do want to have a logical nexus to who you’re working for, but you are basically presenting yourself to the government and saying, “Hey, this thing that I’m doing is important. You’ve said it’s important. I’m working, and I’m going to continue to contribute to that endeavor in the future.” And the thing that you can do, and you must do in these types of petitions, is explain. There’s a lot of education here. That’s why we have 20-page letters sometimes. We have to explain to the person who’s reading this at USCIS, what are you doing, why is it important, and what does it mean? Not everyone is going to know what continuous integration and continuous deployment is in the tech space.

Meagan Dziura: Right.

Jamey Petri: So what I’ve been doing a lot is spending a lot of time explaining in layman’s terms what this is and what it means, and then you can tie into the importance of the endeavor, the person who’s there, what they’re doing, and why it’s important. And green energy is a great way to get into this category, so you picked a really nice example.

But no, you have to be creative. You can be creative here in a way where maybe you are working in a different industry than you have before, but what you’re doing is still the same. Maybe you’re doing automation, and maybe before you were doing automation in one industry, but now you’re working for a different type of industry. You can absolutely achieve an approval here across a cross-section of industries, assuming that your endeavor runs through them.

Meagan Dziura: Right, which, as we talked about it, the PERM-based process doesn’t allow you to do that. If you change jobs, you essentially have to start all over again. So NIW, again, is so attractive because of that reason.

Jamey Petri: That’s right.

Meagan Dziura: Well, thank you so much, Jamey, for joining me to talk about this really important category. I think, like you said, we’ll continue hearing about this even with an administration change. I agree with you, I think it’s still a really great option that companies should definitely be looking at. So thank you, everyone, for listening. I hope you have a great rest of your day.

Jamey Petri: Thanks, Meagan. Thanks, all.

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