Guidance and Resources for Government Agencies

The webpage on Options for Noncitizen Entrepreneurs to Work in the United States  provides an overview of some of the temporary and permanent pathways for noncitizens to start and grow companies in the United States.

Government agencies may play various roles in this process. For example, a grant or award from a government agency may help an entrepreneur meet the threshold criteria to be considered for parole under the International Entrepreneur Rule. Furthermore, a letter from a government agency may help establish that the entrepreneur meets the requirement of having a central and active role in the startup entity, and may also help to meet the alternative criteria, if applicable.

Please see the International Entrepreneur Rule page, which provides more detailed information and frequently asked questions.  

EB-2 National Interest Waivers – Background

The lawful permanent resident process involves 2 or 3 steps, depending on the employment-based immigrant visa classification being sought. In general, most petitioners filing second preference (EB-2) petitions must first file an Application for Permanent Employment Certification, commonly known as a permanent labor certification, with the Department of Labor before filing an immigrant petition with USCIS.

However, persons of exceptional ability or members of the professions holding advanced degrees seeking second preference (EB-2) immigrant visa classification may be eligible for a waiver of the job offer and, thus, the permanent labor certification requirement. This waiver is known as the national interest waiver. An employer on behalf of a beneficiary, or a self-petitioner with or without a job offer, may file an EB-2 immigrant petition seeking a national interest waiver without a labor certification. The petitioner seeking a waiver of the job offer must not only demonstrate eligibility for the classification, but also that the waiver itself is in the national interest. We may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of evidence based on the following 3 elements:

1. The person’s proposed endeavor has both substantial merit and national importance;
2. The person is well-positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

For more information, please see the Employment-Based Immigration: Second Preference EB-2 webpage.

For more information about national interest waivers, please see Volume 6, Part F, Chapter 5 of the USCIS Policy Manual.

Interested Government Agency Letters in Support of National Interest Waivers

Interested government agencies or quasi-governmental entities may provide letters in support of petitions seeking a national interest waiver. For example, federally funded research and development centers could be interested government agencies. Such letters are not required, but they may serve as helpful evidence. For example, such letters could be favorable for purposes of the first element listed above if they establish that the agency or entity has expertise in the proposed endeavor and it promises to advance a critical and emerging technology (PDF) or is otherwise important for purposes of maintaining the United States’ technological prominence.

Detailed letters of government or quasi-governmental interest that provide relevant information about how well-positioned the person is to advance the endeavor are valuable for purposes of assessing the second element. Finally, an interested government agency or quasi-governmental entity can help explain how granting the waiver may outweigh the benefits of the job offer and thus the labor certification requirement by explaining a particular urgency. See Volume 6, Part F, Chapter 5 of the USCIS Policy Manual.

An interested government agency or quasi-governmental entity providing such letter of support may make an express claim that an individual’s work is in the national interest, or they may choose to limit the letter to statements of fact or provisions of data about the individual’s work or credentials. We make the final determination of national interest in the adjudication process. Interested government agencies and quasi-governmental entities may provide letters in support of national interest waivers in accordance with their own policies and signatory requirements.  Any such letter of support should be provided to the petitioner for the petitioner to submit to us as a supporting document.

An exchange visitor (J-1), and in some cases their spouse, former spouse, or child (J-2) who is subject to the 2-year foreign residence requirement, may apply for a waiver of that requirement. One of the 5 waivers available involves an interested government agency (IGA). Any U.S. IGA may request a waiver if they demonstrate that either the J-1 exchange visitor’s departure would be detrimental to one of its programs or the exchange visitor’s stay in the United States is vital to one of its programs. To be eligible for an IGA waiver, a determination must be made that it is in the public interest for the exchange visitor to remain in the United States. The head of the agency (or their designee) must sign the letter requesting the waiver and submit it to the U.S. Department of State’s Waiver and Review Division, which, after reviewing the program, policy, and foreign relations aspects of the case, transmits its recommendation to USCIS. For more information about IGA waivers, please see Volume 2, Part D, Chapter 4 of the USCIS Policy Manual.  See also the Department of State’s Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement webpage for more information about the 2-year foreign residence requirement and J-1 waiver bases and processes.

One of the criteria or circumstances that we may consider in determining whether to grant an expedite request involves government interests. This includes cases identified as urgent by the government (federal, state, tribal, territorial, or local government of the United States) because they involve public interest, public safety, national interest, or national security interests. The request must be made by a person who has authority to represent the agency or department, such as an official, manager, supervisor, or tribal leader, on the matter for which expedited treatment is being requested. The request must demonstrate that the interests are pressing and substantive.

Where a federal agency or department identifies an articulable federal government interest in accordance with these criteria, we generally defer to that federal agency or department’s assessment.

For more information about expedite requests, please see Volume 1, Part A, Chapter 5 of the USCIS Policy Manual along with the Expedite Requests webpage.

Federal agencies work together to ensure compliance with federal, state, and local labor and employment standards. This ongoing cooperative relationship helps protect U.S. and noncitizen workers and improves overall protection of the American labor market, the conditions of the American worksite, and the dignity of the individual.

Multiple mechanisms in our immigration laws can provide employment authorization to noncitizen workers and protect them from removal, including discretionary relief (such as deferred action or parole in place). Labor and employment agencies can seek DHS support in an ongoing investigation or enforcement action by emailing laborenforcement@dhs.gov and including a “statement of interest.” This email may also be used if a labor agency would like more information before submitting a statement of interest. For more information, please see DHS Support of the Enforcement of Labor and Employment Laws.

The Options for Noncitizen STEM Professionals to Work in the United States webpage provides an overview of some of the temporary and permanent pathways for noncitizens to work in the United States in science, technology, engineering, and math (STEM) fields. This guide also highlights some of the most important considerations for STEM professionals contemplating working in the United States, and the various roles of government agencies. For more detailed information, please see the webpages Immigrant Pathways for STEM Employment in the United States and Nonimmigrant Pathways for STEM Employment in the United States.

Federal, state, local, tribal, and territorial government agencies may use the following contacts to ask additional questions:

To reach USCIS about intergovernmental matters: USCIS-IGAOutreach@uscis.dhs.gov

To reach the State Department on matters related to worldwide visa services: BusinessVisa@state.gov