NIW

The National Interest Waiver (NIW) petition

Putting the pieces togetherallows foreign nationals to bypass the cumbersome labor certification process, which is typically required to obtain permanent residence through other employment-based permanent residence categories.

In order to qualify for the National Interest Waiver, the following three requirements must be met.

  1. A beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts or business.
  2. The beneficiary must also persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope. In other words, applicants must prove that there is something inherently beneficial about the work they propose to do in the United States. And third, that the requirement of a Labor Certification for the candidate will adversely affect the national interest.
  3. This last (third) requirement is the most difficult to prove.

Each NIW case is adjudicated on its individual merits, but the burden of proof is always on the applicant or beneficiary to establish that exemption from the labor certification will be in the national interest of the U.S.

For an NIW, even if the beneficiary has no employer, he/she may file an NIW petition on behalf of himself/herself. A U.S. employer may also file an NIW petition on behalf of the beneficiary. Furthermore, the beneficiary can file other immigration petitions under other appropriate categories (such as an EB-1(a) Extraordinary Ability petition) while a National Interest Waiver petition is pending.

Qualifying for a National Interest Waiver

Each of the three requirements must be met to qualify for an NIW. The following are more detailed explanations of the three prong requirements:

  1. Work in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the U.S. Research in any scientific field, for example, can be said to have substantial intrinsic merit to the national interest of the U.S. Likewise, a sociologist studying demographic trends relating to the 2010 U.S. Census can argue that she seeks work in an area of substantial intrinsic merit; or an educational policy expert can show that his field has substantial intrinsic merit due to its capacity to improve society through education. This criterion is not difficult to meet.
  2. The applicant’s work, if successful, benefits the U.S. nationally in scope, means that an applicant’s work cannot have merely a limited regional impact. An applicant who has published their research can always show that their work has a national scope since academic publications are disseminated nationally and internationally. In the absence of publications, an applicant can show that the impact of their work is national in scope. For example, a petroleum engineer can argue that her work impacts the entire U.S. in terms of energy supply and refinery safety.
  3. National Interest would be adversely affected if a Labor Certification were required for the alien. USCIS interprets this to mean that the benefit of an applicant’s work to the U.S. is so great as to outweigh the nation’s inherent interest in protecting U.S. workers by requiring aliens to undergo the Labor Certification process. This is the most difficult requirement of the three to satisfy; therefore, we will discuss this in more detail below.

How to Successfully Meet the Third Requirement:

  • The alien must submit evidence to establish that he/she has a past (as opposed to projected) record of specific prior achievement in the field. It is this record of past achievement that USCIS believes is what justifies projections of future benefit to the national interest. This criterion can be met through tangible achievements such as publications and research achievements, the significance of which is brought out through objective criteria such as numbers of first-authored publications and independent citations as well as subjective criteria such as testimony by independent recommenders.
  • The alien must also establish, in some capacity, their ability to serve the national interest to a substantially greater extent than the majority of the alien’s professional peers. This criterion is largely brought out through testimony by recommenders drawing from evidence of specific prior achievements.
  • The alien must demonstrate, to some degree, their influence on their field of employment as a whole. This is shown through objective criteria such as citations, downloads, and commercialization of patents as well as testimony by recommenders.