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National Interest Waiver - A Case Study!!

Rating: 2 votes, 5.00 average.

We have recently won an incredible case under the National Interest Waiver Category for a challenged athlete who is also a motivational speaker. Attorney Andrew Desposito along with Attorney Kate Powel did a great job in this case. Andrew provides a great summary of this process for our readers.


The National Interest Waiver is a great way to bring an individual into the United States whose work can have an impact that is in the national interest. To apply for a National Interest Waiver, an I-140 petition must be submitted along with the proper documentation that meets the requirements of one of two categories. There are two types of individuals who may be granted a green card through the National Interest Waiver: an Alien that is a member of a profession holding an advanced degree, and an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability. This article will discuss the Alien who has commanded a salary, or other remuneration for services, which demonstrates exceptional ability.

In order to be an Alien that has commanded a salary, or other remuneration for services, which demonstrates exceptional ability, one must show four things: That the Alien commanded such a salary demonstrating the exception ability, evidence of membership in a professional association related to such services, evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations, and the Alien meets the requirements as discussed in Matter of New York State Department of Transportation, Interim Decision 3363, (Aug. 1998). If an Alien meets the requirements as set forth above, he will be granted a green card under the National Interest Waiver.


Evidence of a salary demonstrating exceptional ability


Our client that got his I-140 petition approved is a motivational speaker/athlete. His accomplishments during his life gave him the opportunity to compete as a Challenged Athlete and be a motivational speaker, speaking before numerous schools, youth groups, churches, and business organizations. This individual was paid for speaking before these various groups because all of them recognize him as an exceptional individual for everything he has accomplished in his life. He rose up in a poor country where disabled individuals were once left to die and became a spokesperson and advocate for the disabled.


By showing his country people that disability does not mean inability, everyone who came in contact with our client became instantly aware that they were in the presence of person who was determined to prove to them he is the same as them. Many who know his story believe that it will inspire others to achieve the same level of success through motivation and maintaining high ideals. He continues to be invited to speak before numerous organizations to advocate for the disabled and to show how disabled individuals continue to make an impact in their communities through their own efforts.


Evidence of membership in a professional association related to such services


Our client demonstrated that he was involved in a professional association that solicits donations and plays an active role in the community. The organization is a leading international humanitarian development organization using the transformative power of sport and play to build essential skills in children and thereby drive social change in communities affected by war, poverty and disease. This organization is directly related to the values that our client has consistently demonstrated throughout his professional life as a motivational speaker/athlete. The involvement of our client in such an organization met this requirement since he was involved in the organization by advocating on its behalf.


Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

Probably the most important of the three elements is showing evidence of a person's achievements and significant contributions by other individuals, government entities, or professional businesses. In our particular case, our client is a truly exceptional individual. He has been recognized by the Challenged Athletes Foundation, awarded the prestigious Casey Martin Award by Nike, awarded the Arthur Ashe Courage Award at the ESPY, and has met the President of the United States and the King of his home country. His documentary was also narrated by Oprah. In addition to these awards and recognition for his significant contributions, many people have written letters thanking him for coming to their schools, youth groups, churches, and other organizations to speak and inspire many people with his story. There was no doubt that the evidence provided for our client showed that he has achieved recognition for his significant contributions to his industry as a motivational speaker/athlete.

Meeting the Matter of New York State Department of Transportation Threshold


In addition to the above requirements to demonstrate that the person is in the national interest, the individual must also meet the requirements as set forth in the case of Matter of New York State Department of Transportation. There are three elements in the case that need to be met. First, the benefits of the individual's proposed employment will be national in scope. Second, the individual's work as an athletic spokesperson qualifies him as "significantly above" that which is necessary to prove the "prospective national benefit" required of aliens seeking to qualify as "exceptional." Third, the national interest would be adversely affected if a labor certification were required in this case AND a national interest waiver is NOT being sought based on a shortage of qualified workers in the field.


The benefits of the individual's proposed employment will be national in scope


We demonstrated that the individual's proposed employment will be national in scope. It has intrinsic value because as a motivational speaker/athlete, he inspires people to lead great lives. As an ambassador for disabled individuals, he shows the non-disabled that no physical limitations should hold a person back and prevent them from accomplishing great things. For disabled individuals, he shows that they can lead great lives and do great things if they put their mind to it and to not let their disability hold them back.


Our client spoke at many events and before many groups all over the country, continuing to inspire them with his story of the adversities he overcame. To come from a country where children born with disabilities are exposed to die, and then to rise up from that to become the first disabled person to meet the king of his country, as well as our own President of the United States, is such an incredible accomplishment since it gives others the same hope to achieve the same.


For National Interest Waivers of this kind, it is important to make the case as clear as possible that the individual's work is in the national scope through the organizations the individual will be involved in. We showed that our individual was involved in such an organization that promoted his ability to continue to perform as a disabled athlete and to help him speak before various groups, organizations, schools, and other individuals. By showing that our individual was involved with an organization that allowed him to do his work in a national capacity, the far-reaching benefit to the United States was made evident by his accomplishments.


The individual's work as an athletic spokesperson qualifies him as "significantly above" that which is necessary to prove the "prospective national benefit" required of aliens seeking to qualify as "exceptional"


To demonstrate how an individual's work is in the prospective national benefit, we showed how our client's work had made a direct impact on various communities. We had our client bring in letters from individuals from various communities, schools, and businesses to show the impact his work had towards the national benefit. In addition, because our client spoke before children in schools, children who wrote many letters telling our client how inspirational he was, we also submitted those letters to show the direct impact on those children his motivational speeches had on them. Showing that our client's work has such a direct impact was necessary to making such a strong case for him.


How many other motivational speakers get letters from children and adults from all over the country expressing their gratitude, support and belief in the message that he shares? To have such a far-reaching impact proves that his work is in the prospective national benefit required of someone seeking to qualify as exceptional and that it is "significantly above" those who seek to be qualified as "exceptional".


The national interest would be adversely affected if a labor certification were required in this case AND a national interest waiver is NOT being sought based on a shortage of qualified workers in the field


This element is perhaps the easiest element to meet. In the case of our client, we simply referred back to the various awards for his work, his invitation to speak at various events for many groups, and his strong communication skills and professional experience meet this requirement. By incorporating the letters of recommendation and the other documents demonstrating our client's extraordinariness, it goes to show that labor certification should not be required in this case. Also by incorporating those letters and documents, it shows that the national interest waiver is not based on a shortage of qualified workers, since our client is truly a one-of-a-kind individual.


The National Interest Waiver Secured


So in the end, there are six elements to prove that your client is an individual whose work is in the national interest. The extraordinariness of the individual will be unique in each case in that the individual must show that their work has a far-reaching effect in the U.S. Our client's work shows how he is in the national interest because of how many lives he has touched. Through his story, his performance in athletics, and his efforts to raise the awareness of individuals with disabilities, our client continues to inspire people with his efforts and motivational speeches. For your own prospective National Interest Waiver you should ask yourself, "How extraordinary is my client?" The more extraordinary your client is, the better a case you will have.

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