By: Isabelle Nozari
March 21, 2023
Each year, over a million immigrants come to the United States. For those foreign nationals who wish to remain in the U.S. permanently, there are four main pathways through which they can obtain lawful permanent resident status, also known as a green card: family, employment, humanitarian reasons, or the Diversity Visa lottery. In 2020, out of 707,000 green card recipients, 21% received their green card through employment.
There are three employment-based “preference categories” through which immigrants can obtain a green card. The second preference, category, EB-2, is for “aliens who are members of the professions holding advanced degrees or who have exceptional ability (including requests for national interest waivers).” Typically, in order to obtain an EB-2 green card, an applicant must obtain a labor certification from the Department of Labor (“DOL”). This labor certification “demonstrates that the DOL has determined that there are not sufficient workers who are able, willing, qualified, and available at the place where the alien is to perform such skilled or unskilled labor, and the employment of such alien will not adversely.” In other words, the purpose of the labor certification is to protect U.S. workers and ensure that the admittance of foreign nationals will not take jobs away from Americans.
However, as was established in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), for certain immigrants, the labor certification requirement can be waived, “if the petitioner demonstrates by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” Thus, if the foreign national applicant can prove that it is more likely than not that his or her proposed work in the U.S. will on the whole be so beneficial and vital to the interests of the United States that admitting them would outweigh the need for a labor certification, then that requirement can be waived.
Dhanasar further clarifies that, in considering whether the proposed endeavor has “substantial merit and national importance,” the government considers the “potential prospective impact,” looking for “broader implications,” regardless of whether its geographic impact is on a national scale. Furthermore, it acknowledges that Congress created the National Interest Waiver because it “recognized that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interests.” Essentially, this means that, if the government finds that the potential benefits provided by the foreign national are of “substantial merit and national importance,” then whether a U.S. worker is available to perform the labor need not be considered, because as a whole, the U.S. will benefit by allowing the foreign national to live and work here.
Given the broad language of the governing case law, there are many ways in which an individual can demonstrate that their proposed work in the United States will be of national importance and have a positive impact on the country. Immigration attorneys representing clients seeking EB-2 NIWs can make, and have argued a wide range of bases for the Waiver, including prospective improvements on the U.S. economy or for wages or U.S. workers, improvements in the health care or educational sectors, environmental benefits, and more.
Recently, many immigration law firms across the country have begun to apply for EB-2 NIWs for those in working in fields experiencing labor shortages, such as pilots. There is a well-known pilot shortage in the United States, leading to a severe uptick in flight cancellations, delays, and other issues for travelers nationwide. The pilot shortage adversely affects not only the aviation industry, but also national defense, specifically the air force. Therefore, one might think, and many immigration lawyers argue, that admitting foreign national pilots to live and work in the United States is in the national interest.
The success of this argument, however, is varied; while some law firms report a 100% approval rate for experienced pilots seeking National Interest Waivers, not all pilot NIWs get approved. Notably, there have been cases of EB-2 NIW denialsfor pilots, in which the U.S. government states “‘there is a labor certification process in place to address shortages in fields. Simply working in a field where there is a shortage falls short of showing that the [Petitioner’s] proposed endeavor has a prospective national impact.’” In other words, the government states that the National Interest Waiver is not intended to address labor shortages, as that is the purpose of the DOL’s labor certification process, which is the typical requirement for EB-2 green cards.
But is the government’s assertion correct? Is the alleviation of a national labor shortage not in the national interest?
Sticking with the pilot example, the labor shortage has negatively impacted the United States. As previously stated, the pilot shortage leads to cancellations and delays on commercial flights, and the industry will likely experience higher airfares, further reductions in schedules and routes, and other issues, which could continue for years to come. In fact, the pilot shortage is only expected to get worse, with an expected shortage of 80,000 pilots by 2032. Given these facts, would admitting more qualified pilots not serve the national interests of the United States?
The government contends in its denials that labor shortages should not be addressed by National Interest Waivers, but rather by the DOL’s labor certification process. As previously explained, the purpose of the labor certification is to protect U.S. workers and ensure that the admittance of foreign national workers will not take jobs away from Americans. To file a labor certification, a sponsoring employer must first file an Application for a Permanent Employment Certification with the Department of Labor, wait until it is certified, then file the green card petition with U.S. Citizenship and Immigration Services (“USCIS”). The labor certification takes about 6 months to process with the DOL, with an additional 4 months of preparation as well as 2-4 months for the required prevailing wage determination. This means that the labor certification process alone takes up to 14 months.
USCIS reports that, without premium processing, the average processing times for EB-2 petitions are approximately 15 or 16 months. Thus, without the National Interest Waiver, it can take an applicant up to 30 months, or 2 1/2 years, to receive a decision on their EB-2 green card application.
The National Interest Waiver allows the applicant to forego the entire labor certification process, reducing the total processing time by at least 14 months. With premium processing, which allows applicants to pay a fee for expedited service, an EB-2 NIW green card petition will be processed in 45 days.
Provided the pressing nature of the labor shortages of the United States, is it in the best interest of the U.S. government to require foreign nationals who are qualified to fill those shortages to go through such a lengthy application process? Is it not truly in the national interest of the United States to create a more streamlined process for foreign workers wishing to come to the U.S. to impart their skills and talent, to improve the U.S. economy?
The law surrounding EB-2 NIW green cards has not clearly defined what classifies as “substantial merit and national importance,” and as a result, the matter is often discretionary. However, given the significant impacts that labor shortages, such as those in the aviation industry, can have on the lives of American citizens, the U.S. government and immigration system should reconsider its approach to allowing foreign nationals to fill these shortages. This may be, truly, the best way to protect the national interests of the U.S. and its people.
