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Requirements For Petitioning For the National Interest Waiver (NIW)

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There are several things to consider when evaluating whether petitioning under this category might be right for you. Of course, each case is different and should always be evaluated by properly experienced attorneys. However, there are a few general guidelines that can help you determine whether the National Interest Waiver (NIW) might be right for you.

You Need to Qualify for EB-2 Category:

It is important to recognize that qualifying under the specific NIW standard itself does not establish eligibility for EB-2. Rather, the NIW simply waives the labor certification and job requirements that would otherwise be required to qualify under this preference category. Before a foreign national considers whether petitioning under NIW is an ideal category, the foreign national first needs to see if he/she otherwise qualifies for the EB-2.

EB-2 Requirements: Advanced Degree or Exceptional Abilities

To qualify for EB-2, the petitioner must either 1) hold an advanced degree or 2) claim exceptional ability.

The most common way our clients meet the EB-2 requirements is to show that they hold an advanced degree. This itself can be shown in one of two ways. First, the foreign national may show that he/she holds an academic or professional U.S. degree above the baccalaureate level. A foreign degree can also be utilized so long as it is equivalent to a U.S. degree that is above the baccalaureate level. Second, in the absence of an advanced degree, the foreign national may qualify for EB-2 by holding a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive post-baccalaureate professional experience. USCIS considers the combination of the Bachelor’s degree and five years of experience to be the equivalent of a U.S. Master’s degree.

In the absence of meeting one of the two pathways to showing that the petitioner holds an advanced degree, the foreign national may instead show he/she has such exceptional ability in their claimed area of expertise that it is significantly above that which would be ordinarily encountered in the foreign national’s profession.

Once these minimum thresholds have been met, it will also be necessary to show a specific job offer and for the employer to go through the necessary procedures of obtaining a labor certification from the Department of Labor (DOL). As a corollary to this, it is also important to note that outside of the NIW context, the employer must petition on behalf of the beneficiary. In other words, clients themselves cannot self-petition but rather must rely on their prospective employer to petition on their behalf. Because of these extra hurdles, it is often advantageous to beneficiaries to consider whether a foreign national can self-petition themselves under the NIW standard.

NIW Standard Based on New AAO Decision - Matter of Dhanasar (December 27, 2016)

Once a foreign national petitioner has established their basic eligibility under the EB-2 preference category, the foreign national must further establish that they qualify for the NIW if they wish to avoid the requirement of a job offer, a labor certificate and/or desire to self-petition.

In determining whether one qualifies for the NIW, USCIS previously has designated the three-prong test laid forth in the case of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (“NYSDOT”) as the underlying binding guidance for all petitions for the NIW going forward. The NYSDOT test can be boiled down to the three following criteria that a foreign national must meet in order to qualify for the NIW:

  1. The beneficiary must work in an area considered to be of “substantial intrinsic merit”;
  2. The benefits of the beneficiary’s proposed employment must be “national in scope”; and
  3. The beneficiary must serve the “national interest to a substantially greater degree” than would an otherwise available US worker having the same minimum qualifications such that the national interest would be adversely impacted if a labor certificate were required.

On December 27, 2016, AAO issued a new decision in the Matter of Dhanasar, revisiting the analytical framework for assessing eligibility for “National Interest Waivers”.

The decision vacated the previous NYSDOT test, and established that USCIS may now grant a National Interest Waiver if the applicant satisfies the following criteria, with the new three-prongs as being:

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

1. Substantial Merit and National Importance

In order to show that the foreign national’s proposed endeavor has both substantial merit and national importance, it must be shown that the applicant’s work is related to an important national goal and that the work is beneficial to the United States. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, USCIS considers its potential prospective impact. They evaluate prospective impact not only in geographic terms but also in its broader implications.

The new AAO decision has broadened the evaluative framework for “national importance” of the applicant’s endeavor. For instance, a physician working in one hospital may appear to only be benefiting the geographical region that the particular hospital serves. However, the physician can demonstrate that they are benefiting the nation as a whole through the dissemination of their research publications, or through the development of new procedures or techniques that are implemented in hospitals outside of their geographic region. It is generally easy to demonstrate that most types of scientific research have benefits that are nationally important, as scientific advancement in a particular area can easily be tied to a specific national goal such as healthcare or safety. However, we are also experienced and have had great success in demonstrating the national benefits of those involved in more unusual or unique fields, including but not limited to musicians, artists, economists, and web-developers.

Below are a few examples of previous clients whose work was found to have substantial merit and national importance:

  • A postdoctoral researcher in the field of medicinal chemistry developing anti-viral and anti-cancer drugs contributes to the health of millions in the U.S.
  • A civil engineer working on improving the durability of asphalt improves infrastructure, safety, and transportation in the U.S.
  • A consultant in the field of Petroleum Engineering improves the efficiency of energy production in the U.S., and contributes to the development of environmentally-friendly practices
  • An opera singer brings the arts to society, and contributes to the body of knowledge on vocal health
  • An animator contributes to the advancement of American art and design;
  • A physician in the field of gastroenterology contributes to the advancement of the diagnosis and treatment of digestive diseases, improving healthcare in the U.S.
  • An entrepreneur contributes to the economy and creation of jobs within the U.S.
  • A research associate in the field of economics contributes to risk management and economic growth in the U.S.
  • A medical researcher in the field of oncology impacts healthcare nationwide through research contributing to the development of cancer therapies
  • A physician contributes to the advancement of diagnostic practices that are implemented across the nation
  • A postdoctoral researcher in the field of electrochemistry contributes to performance of batteries, which can be used nationwide
  • A musician, through their nationwide performances and the dissemination of their music through CD sales, contributes to the artistic culture of the nation as a whole
  • A geologist studying mineral-water reactions contributes to the water safety of the U.S.
  • A web-developer contributes to the development of web-content that will be used nationwide

2. Advancing the Proposed Endeavor

The second prong requires the foreign national to demonstrate that he or she is well positioned to advance the proposed endeavor. Factors USCIS considers include, but are 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. The petitioners need to establish, with substantial evidence, that they are well positioned to advance the proposed endeavor.

Examples of evidence can be detailed expert letters that demonstrate the interest of the U.S government in the petitioner’s research, documentation that the petitioner played a significant role in projects funded by governmental grants, and evidence of the petitioner’s education background, skills, knowledge, expertise, and other notable achievements in his or her field including memberships or media reports.

3. Balance Test to determine if National Interest Outweighs the Need for a Job Offer

The new third prong requires the foreign national to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. For this requirement, USCIS may evaluate factors such as: based on the petitioner’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the foreign national to obtain a labor certification. Other factors considered include whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contribution is sufficiently urgent to warrant forgoing the labor certification process.

This is favorable to entrepreneurs who have a history of being able to benefit the U.S. by use of their entrepreneurial endeavor, and there is a reasonable projection they could continue to do the same

We are experts at forming strong arguments to address each of the necessary requirements of this prong, as well as compiling sound evidentiary support for each of the claims that we make. It is useful to consider the criteria for EB-1A (Alien of Extraordinary Ability) and EB-2 Exceptional Ability when compiling evidence in support of the third prong. While the standard of law is much higher for EB-1A (Alien of Extraordinary Ability) and the evidentiary requirements are thus much stricter, the EB-1A (Alien of Extraordinary Ability) criteria can provide a good idea of what types of evidence can establish the alien's past record of achievement and the significance of their proposed endeavor.

Below is a list of evidence commonly included with our EB-2 NIW (National Interest Waiver) petitions, as well as explanations for how each type of evidence can satisfy the requirements for NIW (National Interest Waiver).

  1. Publications & Citation Records (including journal articles, book chapters, and books)
    A complete publication record should be included with the petition in order to demonstrate the alien's past record of scientific achievement. Publication alone, however, will not demonstrate the alien's influence in the field. The publication record should be accompanied with a citation record in order to demonstrate the influence of the alien's work on the field, and show that the work is being utilized by other researchers in the field. Additionally, journal impact factors and average citation records for the field can be used to show that the alien has a degree of influence above that of the average researcher in the field. It should be noted that there is no "magic number" of citations that will guarantee NIW (National Interest Waiver) approval, and there are many strategies that can be used to offset a low citation record.

  2. Letters of Recommendation
    Letters of recommendation are a crucial aspect of the NIW (National Interest Waiver) petition. Independent letters of recommendation (from those who have never worked or studied with you, collaborated with you, or advised your work), will carry much more weight with the USCIS than letters from dependent recommenders, and this should be taken into consideration when selecting recommenders. Letters of recommendation should discuss your research contributions and their significance in layman's terms, and also comment directly on the benefit of your work to the United States. Letters of recommendation are also a great opportunity to demonstrate the implementation of one's work. A letter of recommendation from someone who has utilized your work, and can explain how they have done so in the letter, is a great way to strengthen your case. As part of our service, we will draft all of the recommendation letters for you. We will advise you closely on appropriate recommender selection, and how many letters should be drafted for your case. We set out a clear strategy when drafting the recommendation letters to ensure that the letters contain all of the necessary statements to substantiate the claims we have made in the petition. Lastly, we never rely on templates to draft the letters, and instead tailor each letter to your individual needs and unique case strategy.

  3. Government Funding/Grants
    Funding from reputable institutions or government agencies such as US Military, NIH, NASA, etc are strong evidence in showing the national importance of the foreign national's work. It is essential to demonstrate the foreign national's high level of involvement in the application for the funding and his/her important role in the research related to the funding after it was granted.

  4. Membership
    If the memberships are in the foreign national's field of expertise and require outstanding achievements as the selective criteria, the memberships can improve the foreign national's overall credentials.

  5. Awards
    For awards to strengthen the NIW petition, ideally they need to be given specifically to the foreign national and nationally/internationally recognized. Awards open to individuals at a particular institution, city, or state/ region/ province are not be as influential. For instance, an award given by the American Chemical Society would likely be nationally recognized because it is the largest professional organization for chemists in the U.S.

  6. Published Materials About the Foreign National
    The benefit of one's work to the U.S. can be shown by media coverage. If the articles or published material used as evidence focused on the foreign national and/or the work which he/she has performed in the field of endeavor, and the media enjoys national or international recognition, this will be helpful for the NIW petition

  7. Patents, Contracts, Licenses and Technology Transfers
    A complete patent record, accompanied with citation or commercialization evidence is significantly helpful for demonstrating the utility of the foreign national's work as being adopted by the industry. Other similar evidence including contracts, licenses and technology transfers are also demonstrative of the implementation of the foreign national's work.

  8. Evidence of Others Relying on the Foreign National's Work
    If the foreign national's work or assistance was requested by researchers from outside institutions, this indicates the impact and significance of the foreign national's endeavor. Documentation such as email correspondence and acknowledgement in major trade publications or major media are good evidence.

In sum, a variety of evidence should be presented to demonstrate how the alien qualifies for a National Interest Waiver. It is not sufficient, however, to simply list the alien's achievements. A holistic approach must be taken to ensure that altogether, the petition, letters of recommendation, and supporting evidence will prove that the alien is qualified for a National Interest Waiver. This is our goal at North America Immigration Law Group, and by keeping the requirements of the three-prong test in mind at every step of case preparation, we can ensure that your petition will address all of the necessary aspects of the National Interest Waiver requirements.