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Law360 (April 22, 2021, 5:49 PM EDT) --
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| Miatrai Brown |
Specific to the U.S. economy, the U.S. unemployment rate peaked at 14.8% in April 2020.[1] Moreover, part-time workers experienced unemployment rates almost twice that of their full-time counterparts at 24.5%.[2]
The national interest waiver, as explained below, is a method of obtaining work authorization that will reduce unemployment in the U.S. and stimulate the economy in the midst of the pandemic.
An Introduction to the National Interest Waiver
The national interest waiver is an exemption from the Program Electronic Review Management process, often referred to as the PERM labor certification process, and job offer requirements for advanced degree holders or exceptional ability workers applying for an EB-2 immigrant visa.
Obtaining this waiver is an employment-based immigration benefit used in furtherance of applying to become a U.S. permanent resident.
Typically, to apply for an employment-based green card, the labor market must be tested to determine whether there is a U.S. citizen or green card holder willing and able to assume the job position and responsibilities. However, the foreign national is able to circumvent this requirement through this waiver if their proposed endeavor benefits the national interest of the U.S.
Although "national interest" is not defined by statute, these waivers are typically reserved for individuals who have expertise significantly above what is ordinarily encountered in the sciences, arts or business, and whose employment would greatly benefit the nation.[3] The foreign national may work for a company in a role that is furthering the national interest of the U.S., or the foreign national may open a company that is in the national interest of the U.S.
While a national interest waiver and green card application are pending, a foreign national may simultaneously apply for U.S. work authorization, to work in furtherance of the national interest, through an employment authorization document or a dual-intent visa such as an H-1B or L-1 visa.
This article will focus on COVID-19-relevant topics, including health care and the current U.S. unemployment rate, and proposed endeavors involving self-employment, as statistics have shown that foreign nationals are more likely to start businesses.[4]
If a foreign national obtains work authorization and becomes self-employed, additional U.S. workers are typically hired directly or indirectly to support the foreign national's proposed endeavor.[5]
Because businesses require support, the foreign national will inject money and field expertise into the U.S. economy through the business.[6] Overall, the national interest waiver allows the foreign national to work directly in furthering the nation's interests, while potentially lowering the unemployment rate, supporting the community and increasing members' security.
Opening Immigration Channels to Combat the Recent Challenges
The nation's priorities shifted due to the pandemic. Health care's importance rose to unprecedented levels because of high hospitalization rates and COVID-19-related deaths.[7] In tandem, layoffs occurred at an alarming rate due to economic uncertainty. As the unemployment rate increased, it became more evident that steps were needed to keep the U.S. economy properly functioning despite social distancing and other safety measures required by the U.S. Centers for Disease Control and Prevention.[8]
Understanding the intricacies and complexities of the national interest waiver, and positioning this immigration benefit to foreign nationals who are likely to create jobs for U.S. workers once they receive work authorization, are integral to combating the slowed economy.
It would also enable more foreign born health care workers to enter the U.S. and assist the declining health population.[9] Through this immigration channel, not only will the nation be in a better position to tackle the recent challenges — it will be able to tackle the challenges sooner.
Potential Impacts on U.S. Unemployment Rate
With the recent shifts in the economy and the needs of the nation, practitioners will see major impacts to business immigration as it relates to national interest waivers.
Foreign nationals working in furtherance of a national interest are likely to open businesses and create new job opportunities for U.S. workers, lowering the unemployment rate.[10] Whether the foreign national's endeavor is in health care, technology, security or another national interest focus, the nation benefits from fewer unemployed individuals. Lower unemployment strengthens the U.S. economy and lessens the government's financial burdens.
Practitioners will see changes in the types of petitions they file, and in the types of national interest waiver cases that U.S. Citizenship and Immigration Services is likely to approve. Specifically, we are currently seeing higher approval rates in national interest waiver cases where the foreign national has opened a business to support a national interest and has hired U.S. workers.
Another trend relates to approvals for endeavors that assist U.S. companies negatively impacted by COVID-19 or that assist communities located in economically depressed areas. The pandemic also brought additional visibility to how essential immigrants can be during times of unprecedented economic distress.
How to Best Prepare for These Changes
The best preparation is to foresee the potential challenges, find a way to use immigration to further benefit the nation and educate those that may be affected. Of course, this novel pandemic was not necessarily foreseeable; however, our innovative response to the change is what perfectly positions us to tackle the challenges and positively move forward.
Specifically, using the national interest waiver to streamline more work promoting the nation's interests during a time of national and global distress is essential to the national response and economic recovery time of the economy.
Additionally, educating individuals about the availability of the national interest waiver is just as important. Recommendations for tackling such challenges include the following:
- Setting realistic expectations for foreign nationals who qualify for the immigration benefit prima facie and intend to request this benefit.
- Requesting the foreign national to provide evidence to substantiate their proposed endeavor in the U.S. This may include national and international research, business plans and objective evidence of the foreign national's significant expertise to move the endeavor forward.
- Ensuring timely submission of the waiver so that the foreign national is best positioned at the earliest time to quickly and effectively serve the U.S. national interest.
When setting expectations and reviewing evidence, each client will be unique. However, the way in which we review, prepare and move forward based on the information provided will affect all practitioners.
Specifically, opening immigration channels by way of the national interest waiver for those qualified to directly benefit the U.S. is key to ensuring we continue tackling issues that are most important to our nation and economy, especially amid the pandemic.
Miatrai Brown is the director of legal operations and managing attorney at Hayman Woodward PLLC.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://fas.org/sgp/crs/misc/R46554.pdf.
[2] Id.
[3] https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2.
[4] https://immigrationforum.org/article/immigrants-as-economic-contributors-immigrant-entrepreneurs/.
[5] https://insight.kellogg.northwestern.edu/article/immigrants-to-the-u-s-create-more-jobs-than-they-take.
[6] Id.
[7] https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/covid-view-past-summaries.html?Sort=Posted%20Date%3A%3Adesc.
[8] https://www.brookings.edu/research/turning-covid-19s-mass-layoffs-into-opportunities-for-quality-jobs/ ; https://www.federalreserve.gov/publications/2020-update-economic-well-being-of-us-households-employment.htm.
[9] https://www.reuters.com/article/us-health-professions-us-noncitizens/u-s-relies-heavily-on-foreign-born-healthcare-workers-idUSKBN1O32FR.
[10] https://insight.kellogg.northwestern.edu/article/immigrants-to-the-u-s-create-more-jobs-than-they-take.
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