What is the National Interest Waiver (NIW)?
A foreign national may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his (her) admission to permanent residence would be in the National Interest.
There is no rule or statutory standard as to what will qualify an alien for a National Interest Waiver, according to USCIS. USCIS considers each case on an individual basis.
The procedure is to file the case with evidence to establish that the your admission to the United States for Permanent Residence would be in the national interest.
Benefits of the National Interest Waiver:
No Labor Certification required: A big plus since PERM petitions are taking up to 24 months for certification.
You may self-sponsor your petition.
Who Qualifies for the National Interest Waiver?
The beneficiary of a National Interest Waiver petition must qualify as either an “Advanced Degree Professional” or an “Alien of Exceptional Ability“.
Advanced Degree Professional:
To qualify for the National Interest Waiver under the Advanced Degree Professional category, the applicant must possess an advanced degree (Master’s Degree, MD or PhD) or its foreign equivalent (we recommend using Trustforte for academic evaluations of foreign degrees).
A Bachelor’s degree and five years of progressive work experience in a professional occupation also satisfies the qualification requirement of an advanced degree.
Alien of Exceptional Ability:
To qualify for the National Interest Waiver under the Alien of Exceptional Ability category, the applicant must demonstrate exceptional ability in the sciences, arts, or business, through at least three of the following:
- An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership in professional associations; and/or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
The majority of National Interest Waiver petitions are filed by Postdoctoral Researchers. The following is a summary of the most important evidence to submit:
- Letters of Recommendation.
- Peer Reviewed Publications.
- Cited Publications.
- Conference Presentations.
Matter of Dhanasar:
The current criteria for a National Interest Waiver is from Matter of Dhanasar.
In the Dhanasar case, the court held that the following three criteria must be met:
- The foreign national’s proposed endeavor has both substantial merit, and the benefits are national in scope,
- The foreign national is well-positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
Substantial Merit under Matter of Dhanasar
In Matter of Dhanasar the AAO recognized that the prior interpretation of the National Interest Waiver (NIW) test was not useful in determining whether someone’s work has substantial merit and national importance, recognizing that pure science and research offer far reaching benefits to the U.S.
It acknowledged that evidence that the endeavor has the potential to create a significant impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact.
This substantial merit interpretation is particularly helpful as demonstrating that an applicant’s work had already had an “impact” in the field proved elusive for many.
The AAO further clarified that the endeavor’s substantial merit may be shown in a variety of fields, including in business, entrepreneurialism, science, technology, health, culture or education.
It is possible to establish an endeavor’s substantial merit without a demonstration of immediate or quantifiable economic impact, although such evidence would be favorable.
The AAO provided examples of substantial merit endeavors related to research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.
National Importance under Matter of Dhanasar
The National Interest Waiver applicant must show that their proposed endeavor has “national importance,” which may include local or regional endeavors.
An endeavor that has significant potential impact to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, may have national importance.
To determine whether the proposed endeavor has national importance, the AAO stated that it considers its potential prospective impact.
An endeavor may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.
“But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance,” the AAO noted.
“In modifying this prong to assess ‘national importance’ rather than ‘national in scope,’ as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor.
An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”
Well positioned to advance the proposed endeavor under the Matter of Dhanasar:
In making a determination regarding if the National Interest Waiver applicant is well positioned to advance the proposed endeavor, adjudicators will consider the applicant’s:
Knowledge and record of success in related or similar efforts;
A model or plan for future activities;
Any progress toward achieving the proposed endeavor; and
The interest of potential customers, users, investors, or other relevant entities or individuals.
Adjudicators may consider any other relevant factors related to the foreign national’s ability and qualifications to advance the proposed endeavor.
The AAO notes that USCIS does not require that petitioners demonstrate that the endeavors “are more likely than not to ultimately succeed.” Insteads the petitioner is only required to establish that the foreign national is “well positioned” to advance the endeavor. In phrasing it in this manner, the AAO recognizes that even well-planned endeavors may ultimately fail, and that the emphasis should be on the qualifications of the foreign national to make an endeavor potentially successful.
From the AAO Matter of Dhanasar National Interest Waiver Decision:
“To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
“We recognize that forecasting feasibility or future success may present challenges to petitioners and USCIS officers, and that many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed. But notwithstanding this inherent uncertainty, in order to merit a national interest waiver, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.”
Just stating that you intend to continue working in your field is likely not enough. And although you may not require a job offer in your field you will need to present a plan to continue your work in your field (collaborations for example). Past successes can be used to ensure that you will be able to continue to succeed in your area of expertise. You do not have to show substantial success in the past, just a record of success.
It’s worth noting that in Matter of Dhanasar USCIS does not appear to put heavy emphasis on one’s influence by using publications or citations as the primary factor. Instead they highlighted evidence such as notable funding, awards, media reports and membership, similar to the criteria for EB2-NIW under Exceptional Ability*.
Tips on preparing your National Interest Waiver (NIW) Petition:
Those seeking qualification for a waiver of labor certification based on services considered in the national interest must make a showing significantly above that to prove prospective national benefit required of all aliens seeking qualification as exceptional.
The National Interest Waiver applies only to those who will substantially benefit the national economy, cultural or educational interests or welfare of the United States.
National interest waiver cases require that the emphasis rest with the overall value and potential of the beneficiary’s individual contribution to the U.S. (not the fact that you are working in a field of high national interest.)
You may qualify by being found to be a key or critical member of a team if it can be shown that the team function would be severely impaired without you. Merely working in an area of national interest does not necessitate a finding of national interest qualification.
USCIS recommends the submission of quality testimonial letters from substantial, recognized national or international organizations/institutes/ government agencies with the expertise to definitely say that the work or contribution of the individual truly is in the national interest.
The authors of these third-party testimonial letters should clearly state how they came to be familiar with your work. A testimonial letter will often carry more weight if the author is not a personal friend of the applicant.
USCIS officers look for realistic evidence of substantial prospective benefit to a national interest item or agenda which specifically sets the alien apart from peers in the field.
National Interest Waiver (NIW) USCIS Processing Time:
Current NIW USCIS processing time is approximately 3 to 12 months. There is currently no premium processing option for National Interest Waiver cases.
USCIS Service Center Notes:
NIW petitions filed by mail are adjudicated at the Nebraska Service Center.
E-filed I-140 petitions are adjudicated at the Texas Service Center.
Supporting documentation for the National Interest Waiver petition (Advanced Degree Professional):
- Copy of Advanced Degree and University Transcripts.
- Cover Letter explaining the applicant’s achievements and benefit to the national interest.
- Letters of support from peers.
- List of Citations
- National and/or International awards
- Memberships in industry or research organizations (only if membership is restrictive).
- Invitations to judge or review the work of peers
- Speaking Invitations
- Presentations at national and international conferences and/or seminars
- List and description of Patents (or patents pending)
- Media coverage (if applicable)
Do I need to submit all of my University Degrees and University Transcripts?
Although the USCIS officer is likely to only be interested in your PhD, it is wise to include copies of your Bachelor and Master degree diplomas and transcripts.
How many publications will I need for my National Interest Waiver case?
USCIS does not specify a minimum number of publications required, as a general rule we recommend at least 5.
How many citations will I need for my National Interest Waiver case?
Again, USCIS does not specify a minimum number of publications required, however citations are strongly weighted so the more you have the stronger your case will be. Google Scholar tracks citations to your publications.
What should I include in my National Interest Waiver Cover Letter?
The applicant must establish that their past record justifies future benefit to the national interest.
In other words the applicant must demonstrate specific prior achievements which establish the his or her ability to benefit the national interest.
Keep in mind that the USCIS officer is not likely to be well versed in the scientific and technical terms that you use on a daily basis.
The first few paragraphs should explain your work and your contribution in laymen terms.
If the USCIS officer cannot understand what it is that you do, it is may be difficult for them to approve your petition without issuing an RFE (Request for Additional Evidence).
How many Recommendation Testimonial Letters do I need for my National Interest Waiver case?
There is no minimum number of letters required by USCIS.
In general we recommend at least 5 strong letters.
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