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The HHS research waiver is for physicians or scientists subject to the foreign residency requirement (INA212(e)) who are indispensable to research which is clearly in the national interest. Unlike nonimmigrant and immigrant visa petitions, the HHS research application is reviewed by scientists who are experts or at least very familiar with the area of the research. Often times they are NIH scientists. The factors that are relevant to success of HHS waiver applications are the following:

o National importance of the research itself; this relates to such factors as how many people are affected that the research focuses on, the uniqueness of the research as well as its chances for yielding fruitful results.

o Indispensability and essentiality of the alien to the product itself. The alien should be a principal scientist critical to its development.

o Qualifications of the alien as a researcher.

o Overall strength of the hospital or organization where the alien is performing research.

o The facility’s long-term commitment to the alien.

o The alien’s commitment to the research – at least 50% of the time must be allotted to the research.

o The extent of recruitment efforts undertaken by the facility to find a suitable candidate for the position.

Unlike the VA, state or other EB2-NIW candidate, the successful researcher is not subject to the requirements of INA 214(1) that he/she work in the position on an H-1B for three years. The applicant may instead move directly to legal permanent residency by obtaining approval of an immigrant petition. Quicker immigration may provide advantages in obtaining certain funding (including NIH) that is otherwise restricted to legal permanent residents.

The HHS application would include the following:

1. A complete description of the program or activity in which the exchange visitor is engaged, including factual evidence of the way in which the program or activity serves the national or international public interest.

2. Evidence of the exchange visitor’s essentiality to the program, and specific information describing the exchange visitor’s unique capabilities to contribute to the program over a long period of time.

3. Information regarding the current personnel engaged in the program and how the exchange visitor’s expertise is related to those individuals.

4. Evidence of efforts to recruit for the position to be filled by the exchange visitor, and the results thereof. Copies of recruitment ads, placed in nationally circulated journals, should be supplied with specific information provided as to the results. It must be clearly demonstrated that a suitable replacement for the exchange visitor cannot be found through recruitment or any other means, and the position cannot be filled by any individual who is not subject to the foreign residence requirement. Salary level should be advertised at a fair market rate.

5. The probable future of the program if the waiver is not granted, including specific evidence showing how the loss of the exchange visitors services would seriously restrain the initiation, continuation, completion, or success of the program or activity, or a major part thereof.

6. The applicant institutions long range plans for the exchange visitor, and ways in which the visitor will contribute in the future to the activities in which he or she is employed.

7. Information concerning the exchange visitors qualifications, including evidence of special accomplishments and external letters of recommendation.

8. The exchange visitor’s curriculum vitae, bibliography and copies of appropriate publications, if available copies of all forms IAP-66 or DS-2019

This type of waiver is of great value to those that qualify as it would immeditely waive the two-year foreign residency requirement and once approved, allow the applicant to immediately apply for immigration. It would also allow exceptional researchers, scientists and physicians to remain in the country and continue to undertake important research that will ultimately have a national impact.

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