Types of Waivers

1. Discressionary Waivers used during an application process where a normal situation would be denied, an attorney can prepare a waiver for criminal grounds of inadmissibility. Not everyone is eligible for a waiver. Waivers are discressionarily granted for: 

1. Crimes involving moral turpitude
2. Violations of controlled substance laws
3. Conviction of more than one offense
4.  drug trafficking 
5. prostitution commercialized vice
6. commission of a serious crime in US for which the  immigrant asserted immunity from prosecution
2. The National Interest Waiver is a program offered to employers through the Immigration Service for the betterment or advancement of "National" Interest.

What is a National Interest Waiver?

A "National Interest Waiver" is a waiver of the job offer requirement to a U.S. worker for an employment based petition if the alien's work can be deemed to be in the "national interest." The National Interest Waiver is available for professionals with advanced degrees and people of exceptional ability. This requires filing Form I-140 with an Immigration Service Regional Processing Center together with proof of the alien's advanced degree (Masters Degree or higher or bachelor's degree plus 5 years progressive work experience) or exceptional ability. In addition, documentation supporting that the work the alien undertakes is in the national interest must also be submitted. Typically, this will consist of letters of recommendation plus a resume from other professionals who have reviewed the alien's work. We also provide proof of the advanced degree, copies of any awards, copies of research studies, copies of newspaper articles or publications of the alien's work, copies of program seminars where the alien has presented professional papers, etc.

What is the "National Interest?"

The INS regulations have not explicitly defined "National Interest". However, the Immigration Service has recognized the following criteria in determining whether the national interest is met:

1. Improving the U.S. economy
2. Improving wages and working conditions of U.S. workers
3. Improving education and training programs for U.S. children and under qualified workers
4. Improving health care
5. Providing more affordable housing for young and/or older, poorer U.S. residents
6. Improving the environment of the United States and making more productive use of natural resources
7. A request from an interested U.S. government agency.

What are the advantages for filing for a National Interest Waiver?

There are several advantages to filing a National Interest Waiver and obtaining an approval in this category. The first is that the alien can be the petitioner. Since the waiver is of the job offer requirement, it also does not require that a specific job be offered to the to a U.S. worker by an employer. As a practical matter, the principle advantage in many cases is that one does not have to go through the labor certification process to show that there is a shortage of qualified U.S. workers for a particular position. This not only saves time, but also money in many cases. Please note that although the alien may file the petition, in some cases employers are willing to sponsor the alien for the national interest and sign the petition as the petitioner. The regulations allow that anyone may file the National Interest Waiver Petition. Another advantage of the National Interest Waiver Petition is that in many cases it is not specific to an individual employer. For instance, if one should change jobs after the petition has been approved, but before permanent residency is obtained, one can still proceed to adjust status provided that one continues to work in the area of national interest of the underlying petition.

How long does it take to get a National Interest Waiver approval?

The processing times on National Interest Waiver Petitions are extremely variable. In some cases we have had approvals as quickly as 17 days from the date of filing. In other cases the processing time has ranged between 10-12 months. The processing time may also vary if the USCIS returns the petition requesting additional information. Generally one is provided twelve weeks to obtain additional information in support of the petition. Obviously, if it is returned more quickly to the USCIS for continuation of the processing, a decision will be returned more quickly than if one waits to the end of the permissible return period.

How do we assist someone in seeking a National Interest Waiver?

We will review your education and work experience with you to determine whether a case might be presented. We will provide sample letters of support, which you can use to obtain recommendations from others who are familiar with your work. We will prepare all the necessary forms and advise you of current processing times. We will also research similar case reports of other cases which we may cite when we submit your application. And we will research government and other Internet sites to find supplementary documentation to demonstrate that your work is in the national interest.

What happens after the National Interest Waiver Petition is approved?

After an approval of the National Interest Waiver is obtained, one must still file for adjustment of status to permanent residency (or obtain an immigrant visa at a U.S. consulate). When applying for adjustment, this is done by filing Form I-485, Adjustment of Status to Permanent Residence, at the CIS Regional Processing Center, which has jurisdiction over your place of residence. We can also assist you with this application and the necessary documentation to complete its processing.

Contact Malee about your waiver options.