(Continued from last week's article)
Another category of IMMACT90 that re-quires no job offer or labor certification is the Persons of Extraordinary Ability category. But this requires the applicant to demonstrate that he or she has risen to the very top of the field of endeavor.
One can be talented and on the cusp of pioneering a new technology, but may not as yet be able to demonstrate being at the very top of the field. A recent New York Times article describes an innovator who developed a prototype of a fuel cell in his garage, which could convert natural gas into electricity, through chemical reaction rather than combustion.
A foreign national like this innovator may not be able to qualify under the Extraordinary Ability category, as the technology has not yet been proven and he or she may not be considered a leader in the field, but might be able to under the National Interest Waiver.
The quick grant of the National Interest Waiver should ideally also rapidly lead to the green card so that this individual can have the flexibility to grow a business unencumbered to visa restrictions and create tens of thousands of job opportunities.
Yet, the National Interest Waiver category may not readily apply to all people. Foreign nationals may be employed as engineers for solar electric systems or wind turbines or for monitoring photovoltaic modules in established alternative energy companies (see www.greenjobs.com).
The employer, under the current system, will have to file a labor certification first before applying for a green card. The Labor Department does not consider any engineering job to require more than a bachelor's degree and two years experience, according to its job database on www.onetonline.org.
If an employer legitimately requires a Master's degree, or for that matter a PhD, and a few years of experience, the DOL will automatically consider it as a restrictive requirement and require the employer to justify this alleged restrictive requirement through business necessity.
Such a labor certification is likely to be scrutinized and audited, resulting in unnecessary delays. The DOL, like the USCIS, also ought to recognize the importance of green jobs, and give more leeway to an employer to freely determine the legitimate minimum educational and experience requirements.
Also, the DOL may consider waiving the testing of the US labor market for foreign nationals in green jobs like it has been doing for nurses and physical therapists. It should be noted that the National Interest Waiver or labor certification, even if successfully granted, will be ineffective if the foreign national cannot obtain permanent residency right away but has to wait for years in the Employment-based Second Preference (EB-2) until the priority date becomes current.
While the EB-2 is current for foreign nationals born in just about every country of the world, it is backlogged for those born in India and China. It is for this reason that a bill like HR 5882 is so important for legal immigrants from China and India.
This bill should not be controversial whatsoever, even if allegedly opposed by groups claiming that it will take away US jobs, as it does not create any new category or add to existing numbers. All that it does is to recapture lost numbers of prior years, which will go a long way in benefiting a potential green card applicant from India or China who wishes to pioneer a green technology in the US.
It is thus essential that the USCIS liberalize its interpretation of the National Interest Waiver and other categories to facilitate foreign talent in the US, who in turn can innovate and create millions of new jobs. The DOL must also do the same with regards to labor certification filed on behalf of foreign nationals who are being sponsored for green cards.
It is also important that Congress permits foreign nationals to quickly obtain green cards once their initial petitions are approved by the USCIS, or if that is not politically feasible for Congress at the present time, are at least able to simultaneously file adjustment of status applications with the immigrant visa petition even if the date is not current.
Even if they do not get their green cards quickly, at least the filing of an adjustment application will allow them to exercise job flexibility under AC21 while they wait some years to obtain the green card.
And if Congress is unable to take this baby step in the right direction, the beneficiary of an approved immigrant visa petition should be allowed to visit the US on the B-1 business visa (as well as liberalize the B-1 in lieu of the H-1B doctrine) or the L-1 intra-company transferee visa, assuming that the applicant is employed overseas and wishes to transfer to a branch, affiliate or subsidiary in the US, while waiting endlessly for the green card.
A foreign national who qualifies for an L-1 visa may also independently qualify for a green card as a multinational executive or manager, and here too the USCIS has been extremely tough on small businesses that petition for their multinational managers.
The USCIS must realize that it is these businesses, though small, that are at the forefront of innovation and thus become less stringent in determining whether an individual can qualify as a top manager in a small business. Finally, the USCIS needs to relax a bit and not reflexively spit out long Requests for Evidence (RFEs) on almost every petition that is filed.
Applying for an immigration benefit, even the National Interest Waiver, should not be rocket science. It is preferable that "rocket science" skills be utilized in pioneering new technologies in the US rather than obtaining immigration benefits.
The struggle that a foreign national undergoes in obtaining the National Interest Waiver or other immigration benefit also compels the applicant and his or her lawyer to respond to the USCIS with mountains of paper, which is counterintuitive in an age of increased environmental consciousness.
Print
Top
