Immigration Law Associates
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National Interest Waiver (NIW) Science Cases Present New Challenges


Science researchers seeking entrance to the U.S. in the EB-2 Advanced Degree Professional category must have a job offer and labor certification – unless they are able to obtain a waiver of the labor certification requirement “in the national interest.”  A researcher petitioning to obtain this so-called NIW may sponsor him or herself and therefore needs no job offer.  Most researchers will be able to meet two requirements for an approvable NIW:  showing the field is of “intrinsic merit” and that the benefit of the research is national in scope.  The real challenge in obtaining approval is the third requirement:  showing that the proposed benefit of the foreign scientist working in his field in the U.S. outweighs the “national interest inherent in protecting U.S. workers through the labor certification process.”    In practice, this means showing that the scientist has had a relatively significant impact in his or her field as a whole.  

One traditional way of showing this is to submit letters of support from prominent researchers in the relevant field.  In recent cases letters continue to be helpful, but only as background explanation for evidence that already exists in the public record.   As a result, they need not necessarily be from someone prominent in the field; and in some cases they are not necessary at all.  In keeping with the new emphasis on evidence that would exist, irrespective of whether an immigration case was contemplated, NIW science cases now present new challenges.  However, they still remain a viable route to obtain permanent residence for many foreign nationals, particularly because scientists can self-petition.

Some of our recent cases illustrate the success a foreign scientist can have petitioning for an NIW.   One Indian post-doctoral researcher came to us with limited evidence, but we were able to demonstrate with appropriate letters of support that his research revealed a pattern of distinctive impact in the field.   In this case, as in many, the key was providing a thorough explanation of the scientist’s impact intelligible to a lay reader, such as a USCIS officer. We received no requests for further evidence in this case; it was approved upon initial submission.

Indeed, it is always helpful to provide appropriate explanatory context, even when there is strong evidence for impact in the field.  Another researcher had a very highly-cited article but had not published much in the subsequent several years.  In this case, providing follow up papers in preparation and continuing association with distinguished figures in his field added depth and continuity to his narrative.  Perhaps the most interesting aspect of this case was that no letter of support was necessary; properly presented, the evidence spoke for itself.  This case too was approved upon initial submission.

Of course, the Immigration Service often sends Requests for Further Evidence (RFEs), sometimes for quite a lot of further evidence.  We had an award-winning researcher who worked for a federal agency, and we received a request to submit information and statistics about his awards, his role in his research projects, his publications, his performance reviews and statements from relevant administrators outlining the significance of the data.  However, as a result of its very quantity, the requested evidence failed to convey the strength of the overall picture.  Our strategy in this instance was to present our response through an annotated table of evidence, and successfully answered the request.

The heart of an approvable National Interest Waiver case lies in the facts presented.  Someone contemplating such a case must have evidence of national impact in his or her field. However, securing approval requires that the Immigration Service adjudicator understand and appreciate the significance of the foreign national’s accomplishments.  The case submission must therefore provide a clear complete context for the facts within USCIS guidelines.

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