“No kidding, Mr. Garcia? You mean I can get a green card even without being sponsored by an employer?” Mr. Mahu Sai, a fictional client from Thailand currently visiting the US, uttered excitedly over the phone.
“Yes,” I replied. “You can file a self-petition under certain conditions.”
I explained to Mr. Sai, a bionics engineer by profession who owned several design patents in Thailand, that the US government — through a process called National Interest Waiver (NIW) — allows people who excel in their specialized field to become US permanent residents via a self-petition if it is beneficial to the US national interest. Neither a labor certification nor a job market test is required.
I also told him that the applicant should possess a US advanced degree or an equivalent foreign degree, or a bachelor’s degree plus at least five years’ progressively responsible experience in the specialty.
Absent any advanced degree, the applicant may show, in the alternative, that he possesses “exceptional” ability in the sciences, arts or business, which requires the submission of at least three of the following: (a) degree, diploma, or certificate relating to the specialty; (b) evidence showing at least ten years’ full-time experience in the occupation; (c) license or certification to practice the occupation or profession; (d) evidence of higher remuneration; (e) membership in professional associations; and (f) official recognition from peers, business organizations, or government entities.
“As part of the employment-based second preference (EB-2) category, applicants who qualify for the NIW have a shorter path to a green card,” I explained further.
“I can easily meet those criteria,” said Mr. Sai self-assuredly. “How about the national interest waiver, what factors do they consider for that?”
“Well, this is where it gets complicated,” I opined. “While there is no official definition of national interest waiver under the law, based on the regulations and administrative decisions, the USCIS employs a three-prong test to determine the merits of a NIW application.
“First, the proposed undertaking should have both substantial merit and national importance. Second, the applicant should be well positioned to move the proposed endeavor forward. Third, it would be beneficial to the US interest if the job offer requirement would be waived. I’d say that based on your preliminary background info, the chances are good that you will qualify.”
“I believe so too,” Mr. Sai said smugly. “My bioengineering innovations are very popular in Asia, especially in Japan and China, and are now starting to get noticed here in the US. In fact, it’s the reason why I’m here. I’ve been invited to speak and provide full product demos before a group of big-moneyed investors in Florida.”
He paused, then rambled on: “That my inventions will benefit America as a country is a foregone conclusion. Like China and Japan which are both suffering from fast-aging and declining populations, the US government will see my specialty as a cure-all remedy for all the impotence and ills affecting this country.
Of course, no job offer is necessary because nobody can duplicate my unique expertise here in America. And as the only person who can advance this special undertaking forward, the three-prong test is a slam dunk in my case.”
“Uh, what products or innovations are you involved in, by the way?” I asked out of sudden curiosity.
He replied, “I design and manufacture bionically enhanced sex robots and laser-powered gadgets to cure nighttime impotency and low libido problems.”
He hung up after I told him that nocturnal impotence wasn’t a matter of national importance.
At least until it became a matter of national impotence.