The Greenberg Traurig team recently assisted a medical products client with a rush I-140 immigrant petition requesting a National Interest Waiver (NIW) to allow one of the client’s development engineers to extend their H-1B status beyond the six-year H-1B maximum. The employee’s PERM labor certification remained pending and the employee’s H-1B max out date was only one month away. To avoid having to leave the United States and extend their H-1B status, the employee required an approved I-140 and for the I-140 to be filed and approved quickly prior to the max out date to enable timely filing of an H-1B extension with U.S. Citizenship and Immigration Services (USCIS) before the current H-1B petition’s expiration date.

The GT team assessed the employee’s background for alternatives to a PERM-based green card process and determined that an I-140 requesting an NIW was a viable, although not a strong case. As the PERM remained pending, the client decided to pivot and try to obtain an I-140 NIW approval prior to the H-1B max out date. The GT team quickly began working on the petition as it had to be filed in under two weeks to allow for an approval with premium processing prior to the H-1B max out date.

An NIW allows an employer to skip the PERM labor certification process prior to offering the job to a foreign national employee and therefore it requires substantial documentation to show the employee’s work is in the national interest. USCIS highly scrutinizes NIW requests and commonly issues requests for evidence (RFE) on NIW cases to confirm the case meets the requirements. GT leveraged its recent experience with NIW cases for similar roles and filed the I-140 NIW case with premium processing less than three weeks prior to the employee’s H-1B max out date. The I-140 petition was approved without an RFE and the employee’s H-1B extension was timely filed. The employee was therefore able to remain in the United States and continue employment in H-1B status.

* Past results are not guaranteed.