February 2, 2007 | In: 范毅禹律师
NIW批准后是否能转换工作
National Interest Waiver，即NIW申请，是转为对美国国家利益有贡献的专业人才而设的申请，其可豁免冗长的劳工卡申请。不少客人问到如果NIW申请被批准后是否能转换工作领域。基本上，这里要求NIW的申请人士在一定时间内应该是维持其原来从事的工作领域(有利于美国利益的) ，否则，过早转换工作可能导致USCIS取消已批准的I-140从而阻碍绿卡的申请。以下为我们对有关问题的一些分析，以供大家参考：
As many of our readers already know, the National Interest Waiver (NIW) is one way to skip the labor certification requirement placed on EB2 category immigrant petitioners. The idea behind an NIW is to ensure that highly qualified and promising workers remain in the United States and continue in their successful nationally-important work. Because the labor certification process is mostly concerned with protecting U.S. jobs for U.S. citizens, it tends to discriminate in favor of minimally qualified U.S. workers. Recognizing this fact, Congress decided to include a provision to allow those workers that work in areas of national interest and are highly successful in this area to apply for a NIW. The purpose was to make sure that U.S. doesn’t lose innovative and highly successful people employed in areas of national interest to minimally qualified U.S. workers.
Sometimes our clients ask if it is ok to switch to another position after they’ve received their NIW approval. The short answer is that the beneficiary is fully expected to continue to work in their position or in other similar position in the same field AND continue to contribute to the national interest after they receive their NIW at least until their green card is received. Since the primary purpose of the NIW was to retain the foreign worker in U.S. so that the worker could continue to benefit U.S. national interest, moving to another position that does not benefit U.S. national interest would be contrary to the legislative intent behind this regulation and ultimately risks the I-140 approval.
Moving to a non-national interest position prior toI-485 approval carries with it the risk that USCIS will revoke an I-140 approval once the service realizes that you are no longer employed in an area of substantial national interest. There are several steps during which your employment status and field of work may become apparent to USCIS. First, if your NIW petition is still pending, you could receive a request for evidence that may inquire into your current position and/or request additional letters from experts in your field commenting on your continued contributions to the field. Second, once USCIS begins to process you I-485, they are likely to request another employment confirmation letter that states that you continue to work in your field of expertise and continue to contribute to the national interest through your work. Third, during the naturalization process, USCIS may notice the change in your employment fields during a routine records review.
As an NIW beneficiary, you have obligated yourself to continue to pursue work in your field of expertise as discussed in the NIW petition. Once your petition is approved this obligation does not cease. If you are an NIW beneficiary considering changing positions or moving to another field, please consult with your attorney to make sure that this new position will not risk your status as an NIW beneficiary. Careful consideration and planning now will take you far in avoiding problems down the road.
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