The National Interest Waiver (NIW) is an employment based green card category based on a waiver of the job offer and the labor certification (PERM) process if it is in the national interest of the United States. The NIW falls under EB-2 category. For more information about the NIW, please click here.
A wide range of fields of endeavor may qualify, including business, entrepreneurship, science, technology, culture, health, and education. The waiver of the job offer and labor certification makes the NIW an attractive green card category. This blog post focuses on the job of a Materials Science Engineer who develops semiconductors to improve power devices, and the applicability of the NIW to this profession.
The analytical framework for qualification for the NIW category was explained in Matter of Dhanasar, a case decided in 2016 by the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS). Dhanasar replaced the previous NIW framework that had been established in 1998, in Matter of New York State Dep’t of Transp. [NYSDOT].
Dhanasar established three prongs that must be satisfied to meet the NIW standard:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well-positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
How May a Materials Science Engineer Satisfy the “Substantial Merit and National Importance” Prong of Dhanasar?
For the first factor, the Dhanasar standard requires that the applicant show that the proposed endeavor has both substantial merit and national importance.
Materials Science and Engineering is an area of substantial merit and national importance, as the benefits of research in this field significantly contributes to the United States’ technological advances benefiting every American. Semiconductors – microchips that control all modern electronics – enable the systems and products Americans use to work, communicate, travel, entertain, harness energy, treat illness, and make new scientific discoveries. Almost all of today’s technology involves the use of semiconductors, including computers, cell phones, navigation systems, and cloud storage solutions.
In addition, the field of Materials Science and Engineering could significantly contributes to the technologies affecting the United States’ national security. The U.S. Department of Defense invests in breakthrough technologies for use by the U.S. military as part of a robust innovation ecosystem including academic, corporate, and governmental partners. Materials Science and Engineering is a field that leads to game-changing military capabilities such as precision weapons and stealth technology contributing to the national security of the United States. For example, a Materials Science Engineer may be involved in the development of a radio frequency transmitter that generates radio signals to be applied to military radar and electronic warfare programs.
Finally, the field benefits the national economy and global competitiveness by contributing to more energy-efficient technologies and the growth of businesses. The semiconductor industry is perennially one of America’s top exports, and every year, chip makers and designers dramatically increase the performance of their products while decreasing prices, making high-end technology goods increasingly productive and affordable for consumers. Such are the issues tackled by Materials Engineers. The industry directly employs nearly a quarter of a million people in the U.S. with sales by U.S. headquartered firms totaling $188.9 billion in 2017.
How May a Materials Science Engineer Satisfy the “Well-Positioned to Advance the Proposed Endeavor”?
To determine whether the alien meets this prong of the Dhanasar test, USCIS will look to the alien’s education, skills, knowledge, and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor, and the interest of relevant organizations.
A Materials Science Engineer may satisfy this prong by submitting evidence of his successful career track record, including his contributions to the advancement of the field as reflected in publications in scholarly journals and presentations in professional conferences. The number of citations of the Materials Science Engineer’s articles is also a factor contributing to USCIS’s determination that he is influential in the field, and therefore has the ability to advance the proposed endeavor. Additionally, although a formal job offer is not required, employment in the Materials Science Engineer’s field of expertise, for example, at a university, research laboratory, or governmental/private defense firm that specializes in the development of semiconductor devices, will offer USCIS a clear picture of the Materials Science Engineer’s plan for future activities, as well as the interest of organizations in the alien’s skills. All of these factors would contribute to a positive determination that the foreign national is well-positioned to advance the proposed endeavor.
How May a Materials Science Engineer Show that “It Would Be Beneficial to the United States to Waive the Requirements of a Job Offer and Labor Certification”?
To meet this prong of the test, USCIS will consider, among other factors, whether the United States would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.
In the case of a Materials Science Engineer who possesses special skills in developing next-generation semiconductors in a key industry implicating thousands of products and consumers in the United States, the presence of qualified U.S. workers would not affect the benefit of a Materials Engineer’s contributions to the U.S. national economy. In addition, given the importance of the U.S. military’s possession of cutting-edge technologies to protect our country’s national security and engage in warfare across the globe, the need for an exceptional Materials Science Engineer’s contributions may very well be determined as being sufficiently urgent to warrant forgoing the labor certification process.
If a foreign national satisfies these criteria, USCIS may issue a national interest waiver in its discretion.
Navigating the complexities of case law and current adjudicating trends often requires the expertise of an experienced immigration lawyer. For more information about qualifying for NIW or applying for a green card as an engineer, please contact Scott Legal, P.C.
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