November 7, 2022

It is crucial for employers looking to hire immigrant workers to understand the labor certification process, otherwise known as PERM. For most forms of employment-based immigration, this is a necessary process for employers who must recruit foreign national workers.

However, National Interest Waivers (NIW) offered an alternative to this process. The NIW allows individuals with exceptional abilities or advanced degrees to bypass PERM altogether. Under an NIW classification, individuals can obtain sponsorship, either self-sponsoring or by an employer, if they prove it would be in the national interest of the US.

In a 2016 decision, the US Citizenship and Immigration Services (USCIS) provided a new framework for adjudicating eligible NIWs. This new framework provided three tests that granted NIW. Under these tests, an individual must establish that:

• The proposed endeavor possesses substantial merit and national importance.
• They are well-positioned to advance the proposed endeavor.
• Everything considered would benefit the US enough to waive the requirements of a job offer and, thus, the labor certification.

For those with qualifications in STEM-related fields, the USCIS recently issued policy guidance that made it far easier to meet these three standards. Under this new guidance, an advanced degree in a STEM-related field is now a compelling factor in meeting each of these three tests.

Regarding the first test, the USCIS clarified that a wide range of STEM endeavors provide substantial merit and are essential to national interests. Though some STEM fields may have to localize an impact, it does provide firm support. Next, under the second prong, an advanced degree is also assumed to support the presumption that an individual is well-positioned to advance.

Under the third test, USCIS recognizes that individuals who possess an advanced STEM degree and work in a field that is crucial to US competitiveness and equipped to advance can benefit the US interest even if US workers are available. Under this guidance, STEM qualifications can support achieving an NIW.

In addition, USCIS clarified earlier this year how entrepreneurs could acquire NIW clarifications. The factors in qualifying in these cases may include several levels of support, the potential for job creation, and other factors. However, entrepreneurs must still meet the three tests to receive an NIW.

More recently, USCIS announced that it would also open expedited processions for these petitions, allowing 45 days to make initial decisions. This announcement is a boon for these applications, which had reached processing times above a year.

Due to these benefits, NIW has become a strong option for employers in hiring foreign nationals for certain critical positions. However, it is essential to remember that some documentary challenges remain. For example, the employment eligibility verification process (Form I-9) can become quite challenging when hiring foreign nationals. One of the best ways to simplify this process is with a Form I-9 management tool. This tool can guide employers through the verification process while ensuring uniform compliance and secure storage of forms and documentation.

Automate your employment eligibility verification today with the ensured compliance of I-9 Compliance.

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