Permanent Residency Through the National Interest Waiver: An Alternative to the ‘PERM’ Process

U.S. higher education is widely recognized as the entity that molds bright minds, many of which proceed to innovate and discover, transforming society for the better. Such highly trained individuals, including those temporarily residing in the United States on a non-immigrant visa, conduct groundbreaking research and build successful business portfolios that support a healthy economy. 

But what happens when the temporary stay of such talented foreign nationals expires? How does the United States position itself to continue to reap the benefits of their endeavors?

The most common pathway to obtain permanent residency in the U.S., commonly referred to as a “green card,” is through the permanent labor certification (PERM) process. To provide context, a U.S. employer seeking to offer a permanent position to a foreign national employee through the PERM process must first obtain a labor certification from the U.S. Department of Labor. 

Prior to requesting certification, the employer tests the labor market to demonstrate there is not an able, willing, and qualified U.S. worker for the position. This test, designed to ensure the employment of a foreign national will not adversely affect the wages and working conditions of U.S. workers, can be cumbersome, time-consuming, and expensive. In addition to the obstacles faced by the U.S. employer, the foreign national worker must secure employment with a U.S. company willing to undergo the burden of sponsorship, which can be a challenge in itself. 

An alternative – the National Interest Waiver – provides relief for certain foreign national workers and the U.S. employers and areas benefitting from their expertise. The Immigration and Nationality Act (INA) permits an exception to the requirement of a bona fide job offer and labor certification preceding the filing of an Immigrant Petition for Alien Worker (Form I-140), provided the applicant demonstrates a waiver of the typical requirements is in the interest of the United States.

This exception offers an opportunity for entrepreneurs and individuals with advanced degrees to obtain the benefit of permanent residency in the U.S. while averting the burdensome labor certification process that most must undergo. The Biden-Harris administration affirmed this exception in January 2022, specifically highlighting entrepreneurs and individuals with advanced degrees in science, technology, engineering, and math fields, as well as subjects involving critical and emerging technologies and other areas of importance to U.S. competitiveness and national security.

Although far less time consuming, the waiver application presents evidentiary challenges of its own. In particular, to obtain a waiver, foreign national workers who possess an advanced degree or exceptional ability must present evidence whether:

1. They are undertaking a proposed endeavor that is of substantial merit and national importance
2. They are well-positioned to advance the proposed endeavor
3. It would be beneficial to the United States to waive the job offer and thus, the permanent labor certification requirement

This article was co-authored by Tieranny Cutler, independent contract attorney.

• RELATED TOPICS
• Immigration
• Department of Labor (DOL)