The HHS research waiver is for physicians or scientists subject to the foreign residency requirement who are indispensable to research which is clearly in the national interest. Unlike the O-1 visa or the EB-1 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:
- 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.
- Indispensability and essentiality of the alien to the product itself. The alien should be a principal scientist critical to its development.
- Qualifications of the alien as a researcher.
- Overall strength of the hospital or organization where the alien is performing research.
- The facility's long-term commitment to the alien.
- The alien's commitment to the research -- at least 50% of the time must be allotted to the research.
- The extent of recruitment efforts undertaken by the facility to find a suitable candidate for the position.
Unlike the VA, state or other IGA waiver candidate, the successful researcher is not subject to the requirements of INA 214(l) 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.
As lawyers representing you in this application, we will be involved in collecting testimonial and documentary evidence which shows that legal standards are satisfied.