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The following questions and answers are based on those frequently posed to
the attorneys at the Murthy Law Firm. As a
courtesy to our clients and the immigrant community, we generously share
this useful information.
Question 1.
I want to file a petition for National Interest Waiver, based on an acute
shortage of people with my particular professional skills in the United
States. Is this possible? Top
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The USCIS has strict guidelines regarding who qualifies for an NIW.
These guidelines state
clearly that a shortage is not sufficient reason for an NIW and, in a shortage situation,
it recommends using the usual employment-based (labor certification)
sponsorship process.
©MurthyDotCom
Question 2.
Can a person
who holds a master's degree in Computer Science from a U.S. university +
experience, and who is working for a state government organization apply for
a National Interest Waiver?
Top
©MurthyDotCom
It is possible for a person
with a masters degree, who is working for a state government, to apply for a
national interest waiver. Whether or not the NIW case will be approved by
the USCIS ultimately will depend upon convincing the
USCIS that the person is
truly superior to others who are in that field, and that the work will
benefit the United States as a whole, and that the work is in the national interest. Much
depends upon the individual's particular achievements and contributions. No matter how
talented one is, if s/he has worked only on assigned projects, s/he
will not have a strong case. One needs to be an innovator, who has advanced
the science of the field as a whole and influenced others.
©MurthyDotCom
To see if you may qualify, you may call the Murthy
Law Firm at 410.356.5440 for an initial consultation, at no further obligation.
Question 3. Is it possible for one to file for a
green card under National Interest Waiver, Extraordinary Ability, and Labor Certification
at the same time? Top
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It is certainly possible
for a person to file multiple applications and
petitions in
different categories for the green card at the
same time. Some people potentially qualify under more than one category. Our firm has processed cases for which we have
filed a National Interest Waiver, Extraordinary Ability, and regular Labor
Certification for the same person.
©MurthyDotCom
Question 4. I heard that the USCIS has
become extremely stringent in EB1 (Outstanding Researcher /
Professor) petitions. What are the requirements for the Outstanding
Researcher / Professor category?
Top
©MurthyDotCom
Generally, we would need to demonstrate that the professor or researcher is
recognized internationally in a specific academic area through specific
types of documentation. The individual must have at least three years'
experience in teaching and/or research in the academic area.
©MurthyDotCom
Such individuals must be sponsored either (1) for a tenured or tenure-track
position within a university / institution of higher education, or (2) in a
comparable university / academic research position or (3) in a private
company in a comparable position. Private employer sponsors must have
documented research results and employ at least three full-time researchers.
©MurthyDotCom
Question 5. I am a physician and came to U.S.
on a J-1. I started work on H1B under the Conrad State 30 program. Should I apply for
a National Interest Waiver or do a Labor Certification case instead? Top
©MurthyDotCom
Assuming that the NIW is the special type for physicians in underserved
areas, you will be required to remain in the position for five years
instead of three. Additionally, unless the position is through the Veteran's
Administration, the physician NIW is only available for pediatricians,
general internal medicine, family or general medicine, obstetrics /
gynecology, and psychiatry. For the Labor Certification, you may have more flexibility with regard to
future options. However, many physicians who have committed to work for
three years in an underserved area do use the NIW as an avenue to obtain a
green card. We suggest a consultation with an experienced U.S.
immigration attorney to discuss the options and determine which would be more helpful in meeting your goals.
©MurthyDotCom
Question
6. Can one apply for
a National Interest Waiver while his/her labor application is pending with
the U.S. Department of Labor? If
the NIW (I-140) is denied by USCIS, will the individual still be able to
complete the labor certification process and apply for I-140 again? Top
©MurthyDotCom
It is possible for one
to apply for a National Interest Waiver or any other green card petition while
the labor certification is pending with the Department of Labor. Even if the
I-140 is denied in the NIW case, the person will still be able to complete
the labor certification process and apply for the I-140 based upon approval
of the Labor Certification application.
©MurthyDotCom
Question 7. If I file for the National Interest Waiver (NIW),
Extraordinary Ability (EA), or Outstanding Professor or Researcher (OPR)
category, may I use concurrent filing to file my I-485?
©MurthyDotCom
It is permissible to file any I-140 and I-485 concurrently. However, some
people choose not to file an EA, NIW, or OPR concurrently with the I-485 since these
categories are subjective, and a denial of the I-140 will result in an
automatic denial
of the I-485. Additionally, the
ability to utilize the concurrent filing process depends on the availability
of a visa number for the particular category and country of chargeability of
the applicant. For many, concurrent filing may not be an option.
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