Avoiding PERM: National Interest Waiver | 7/10/2024 Recap
Kimberley (Best) Robidoux
Helping Global Businesses with Corporate Immigration Strategies | Partner at WR Immigration
The transcript version of our weekly Q&A livestream for corporate immigration professionals
??Question: Should we be more conservative when evaluating National Interest Waiver qualifications given the upcoming presidential elections?
Response: This is a really good question and something that's been on our minds as well. Politics often come into play with immigration status, even employment-based immigration. If there is a change in administration, the leniency we've seen during the Biden administration may not extend into a new administration. Given that it can take a few months to prepare an NIW petition and several weeks or longer for it to be adjudicated by USCIS, now is a good time for HR and global mobility professionals to assess whether the company will support NIW petitions and determine which foreign national employees may qualify. The goal would be to get an adjudication completed before a new administration, if that is the outcome in the upcoming election.
??Question: Can you provide some background on the PERM labor certification and why employers might consider the national interest waiver category as an alternative?
Response: PERM labor certification is the first step in the three-part green card process and can be expensive, labor-intensive, and time-consuming for employers. The processing times at the Department of Labor have also gotten longer, leading many employers to consider the national interest waiver category as a good alternative to PERM.
??Question: What does the data show about the filing of NIW cases?
Response: When we looked at the USCIS data, we found that from fiscal year 2022 to fiscal year 2023, the filing of NIW cases increased from 26% of all EB2 cases in fiscal year 2022 to 43% in fiscal year 2023, almost doubling. Conversely, I-140 petitions in the non-NIW EB2 category dropped from 74% to 57%, showing more employers are filing NIWs instead of non-NIW EB2s (which would be PERM).
??Question: What factors contributed to the increase in NIW filings?
Response: In early 2022, USCIS updated its policy to clarify how some STEM professions can be eligible for national interest waivers. Additionally, the Biden administration issued an executive order signaling an expansion of employment-based categories specifically related to AI, leading many employers to consider NIW cases and even EB1 cases, which we'll address in future episodes.
??Question: Can you explain the criteria for a National Interest Waiver?
Response: The foreign national has to show that their work is in the national interest. The first requirement is that the work has substantial merit, meaning it has the promise of bringing a benefit to society. The second requirement is that the work has national importance, meaning the benefit can't be just local or regional but national in scope.
??Question: Can you provide an example of work with substantial merit?
Response: An example would be a scientist doing research in biotech to develop a cure for a specific type of cancer. However, it's not limited to such straightforward cases. For instance, an engineer using machine learning to develop models for a software company in the construction industry could argue their work has substantial merit by enhancing the efficiency of the construction process.
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??Question: What is meant by 'proposed endeavor' in the context of NIW?
Response: Proposed endeavor refers to the work the foreign national plans to do, and it can be ongoing work. The foreign national must show they are well-positioned to carry out this endeavor by having a record of accomplishments related to the proposed work.
??Question: How should HR and global mobility professionals go about exploring NIW for their foreign national population?
Response: First, know that not everyone will be eligible for the NIW category. Communicate that eligibility is case-by-case and fact-based. If you plan to include this in your company's HR or immigration policy, make it clear that sponsorship is at the discretion of HR or the global mobility team based on a case-by-case determination with legal counsel. Work with legal counsel to develop parameters for evaluating who might qualify for NIW, potentially focusing on certain business units or roles.
??Question: Why might a company choose to file an NIW petition as a petitioner rather than having the foreign national self-sponsor?
Response: While the NIW category allows for self-sponsorship, if a company is paying for legal and/or filing fees, we typically recommend that HR professionals consider filing with the company as the petitioner. This allows the company to sign off on the support letter and discuss the significance of the foreign national's work at the company, which can be beneficial.
??Question: What are some benefits of NIW compared to a PERM-based EB2 case?
Response: With NIW, the foreign national is not tied to a specific title/position or occupation but rather to their field of expertise, allowing for more career growth without needing to file another I-140 petition or PERM application for every substantive change in their career progression. This flexibility is better than being constrained by the specific occupation sponsored under PERM.
??Question: How can an approved NIW I-140 petition be beneficial if a foreign national moves to another employer?
Response: If an individual has an approved self-petitioned I-140 under NIW but is quota backlogged, they don't need to file a new I-140 with the new employer as long as they continue to work in the same field of expertise. This can be helpful for HR and global mobility professionals when assessing and onboarding a new employee.
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