INTRODUCTION

The National Interest Waiver (NIW) is a waiver given by USCIS of the job offer requirement for a foreign national seeking a green card in the category reserved for professionals with advanced degrees or individuals with exceptional ability in the sciences, arts, or business (this is the EB2 category).  In effect, by waiving the job offer requirement, labor certification requirement (PERM) is waived as well.  The general underlying justification for the National Interest Waiver (NIW) is to get useful workers into the U.S. so that they may work and benefit the U.S.

GENERAL NIW REQUIREMENTS

The requirements for the NIW were set forth in Matter of New York State Department of Transportation (“NYSDOT”) by the INS Administrative Appeals Office (AAO) in 1998.  In NYSDOT, the AAO held that in evaluating an applicant’s prospective benefit to the national interest, the AAO will consider whether “the alien’s PAST RECORD justifies projections of future benefits to the national interest” through a three prong test. 

The three prong test is as follows:

PRONG 1 – Does the applicant seek to work in a field of “substantial intrinsic merit”?

This term is not defined, but case law suggests that it relates to the following seven non-exclusive factors as related to general welfare:

a.  Improving the U.S. economy; 
b. Improving wages and working conditions of U.S. workers; 
c. Improving education and training programs for U.S. children and under qualified workers; 
d. Improving health care; 
e. Providing more affordable housing for young and/or older, poorer U.S. residents; 
f. Improving the U.S. environment and making more productive use of natural resources; or 
g. Involving a request from an interested U.S. government agency.

Generally speaking, this prong, along with Prong 2 below, is not too difficult to meet. 

PRONG 2 – Is the benefit of the applicant’s work “national in scope”?

What must be established here is that there has been and will continue to be a benefit to the U.S. national interest through the applicant’s work.  It should be shown that applicant’s work is national in scope or that it benefits a national goal.  Furthermore, it is important to understand that the focus should be on how the applicant’s own work directly benefits the national interest, and not on how the field the applicant is working in as a whole benefits the national interest.

Please note that there should not be a focus on a local or regional benefit, as this will not comply with the “national” scope of the prong.  Some fields inherently have a presumption of “national scope”, such as medical research. 

PRONG 3 – Will the applicant “serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications”?

This is the most difficult and most important prong to effectively display.  It must be shown that the benefit from the applicant’s work is considerably greater than the national interest in protecting U.S. workers through the labor certification process (PERM).  Generally speaking, this is most effectively conveyed by elaborating on how the applicant has created considerably more benefit through his work than a minimally qualified U.S. worker in his field.  This in turn suggests that the trend of the applicant providing greater benefit than a minimally qualified U.S. worker is likely to continue in the future.  Therefore, in the eyes of the USCIS, the measure of the applicant’s future expectation is based in part on his past and current accomplishments. 

TYPICAL SUPPORTING MATERIALS FOR AN NIW APPLICATION

The typical list of supporting material for an NIW application is very similar to that required of an EB-1 application for an individual of extraordinary ability.  Please see below for the types of evidence that should be included in an NIW application.  The list is meant to give one an idea of common support materials (i.e. it is not exclusive). 

• Receipt of awards or honors
• Membership in associations
• Authorship of scholarly articles
• Citations to applicant’s work
• Invitations to conferences
• Discussion of applicant’s work in professional or major trade publications or other major media
• Participation on a panel or as a judge of another’s work
• Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance
• Display of the applicant’s work at an artistic exhibition or showcase
• Performance in a leading or critical role for organizations or establishments that have a distinguished reputation
• Command of a high salary or other significantly high remuneration for services, in relation to others in the field
• Recommendation letters

RECOMMENDATION LETTERS

It is highly important to be able to provide recommendation letters from well-established individuals in your field.  These letters can come from your employer, but even more importantly they should also come from independent individuals who do not personally know you.  These individuals may be familiar with your work or the influence you’ve had on your field.  Furthermore, it can be very helpful if the recommenders are associated with government organizations. 

ITEMS THAT PROVIDE LITTLE SUPPORT IN AN NIW APPLICATION

• The presence of a shortage in the field
• The applicant’s academic record
• Anything that suggests self-interest on behalf of the recommender in providing a recommendation letter
• Statements suggesting a certain level of competence are insufficient, as it must be shown that the alien possesses proficiency greater than mere competence
• Evidence that the alien’s experience and skills are merely unique without additional, specific evidence
• Evidence that the alien only played an important role in a project that is in the national interest
• Evidence of future prospective benefit without a focus on past achievements
• What may, might, or could one day result from the applicant’s work, rather than how the applicant’s past efforts have already had a discernable impact beyond that which is expected of most other individuals in his or her field

CONCLUSION - CONTACT US FOR MORE INFO

The National Interest Waiver is a highly involved process, but it is obtainable if one has the right background, experience, and credentials and is a terrific green card option for those who qualify.  If you feel after reviewing the above information that you may qualify, please contact us for more info and/or an evaluation.