National Interest Waiver
The national interest waiver" (NIW) is a provision of the second preference employment-based category which allows a beneficiary to bypass the labor certification process and self-petition for permanent residence based on professional achievements he established in his field of endeavor. This waiver is available if the applicant's work is in the national interest and he has a good record of achievements in his field. The NIW is typically utilized by postdoctoral researchers, but can also be used by professors, industry researchers, artists, and business people.
The standards for National Interest Waiver are laid out in detail in New York State Department of Transportation ("NYSDT"), one of the key decisions by the Board of Immigration Appeals on National Interest Waiver cases. The following is the summary of National Interest Waiver qualifications and explanations from NYSDT and other NIW cases.
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Qualifications for National Interest Waivers
NIW is for the second preference employment-based category. Therefore, the threshold requirement is a master's degree or exceptional ability in the field.
The main requirement for National Interest Waiver is a three-prong test laid out in NYSDT. In order to qualify for National Interest Waiver, the beneficiary must meet all three parts of the test.
- The alien's employment must be in an area of substantial intrinsic merit.
If the beneficiary is being paid to do a particular kind of research, or if the work has at least some sort of artistic or other value, the work is arguably of "substantial intrinsic merit."
- The proposed benefit must be national in scope.
If the beneficiary can demonstrate that the impact of his work goes far outside of the geographic area of his employment, meaning that his work serve the interests of other regions of the country, the benefit is arguably national in scope and the beneficiary can meet the second prong. For example, a bridge engineer in NYSDT worked on bridges only in New York state, but because those bridges are used by people from around the country, that was deemed to be "national in scope." However, professionals whose application of skills is to a specific clientele who are geographically confined typically cannot meet the second prong.
- The national interest would be adversely affected if a labor certification were required for the alien.
In order to meet this final and most important part of the test, the petitioner must prove that the beneficiary will serve the national interest to a "substantially greater degree" than would an available U.S. worker having the "same minimum qualifications." The labor certification process exists because of protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. Therefore, an alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.
- The NIW petition does not require a labor certification.
- The NIW petition does not require a permanent job offer from a U.S. employer. Therefore, the beneficiary can self-petition. This means that the petition does not require the signature of anyone at the university or company where the beneficiary is employed.
- The beneficiary can get employment authorization and travel document much faster than by the labor certification process if he can utilize the concurrent filing option. The spouse and children can also obtain employment authorization and travel document.
- The NIW petition provides more options in job opportunities. Compared to the labor certification process, the beneficiary can change jobs much sooner and can change to a much broader range of job opportunities.
- In some cases, the beneficiary can be self-employed.
- In some cases, it is difficult to show a benefit is national in scope. For example, research centering on the ecology of a region of the U.S, and benefiting primarily that region, might not qualify.
- NIW approval requires that the beneficiary document impact on the field as a whole. Good grades alone or assisting on some major federally funded project (no matter how important that project may seem) are insufficient.
- Since the adjudication policy the USCIS applies to NIW cases remains quite flexible and often changes, the outcome of NIW petition can also be less predictable than the labor certification process.
In order to meet the standard for NIW approval (the "substantially greater degree" test) the beneficiary must be shown to be more qualified than others in the field. Recently, however, neither unique expertise nor a rare combination of expertises has been acceptable evidence of "greater" qualification. (A shortage of Americans in the field has never been qualifying evidence of eligibility for the NIW.) Rather, USCIS now puts an emphasis on "unsolicited" evidence such as citation statistics or publicity featuring the beneficiary, showing his/her prominence as an authority in the field. Consequently, letters of support from others in the field, no matter how distinguished, are of diminishing help. Even letters of support from U.S. government administrators must specify impact in concrete terms.
To obtain a national interest waiver, the beneficiary must file a Form I-140 petition, Form ETA 750B, and supporting documents directly with USCIS. The beneficiary does not have to file anything with the Department of Labor. In addition, if a visa number is available, the beneficiary can concurrently file I-485 with I-140, and can also apply for employment authorization and travel document.
Processing times for NIW depends on the case load at the specific USCIS service center which the petition is filed at. Current processing times by the Service Centers can be found here.
The statute, regulations of National Interest Waiver are quite complex and standards from adjudicated cases continue to remain unclear. Since each NIW case will be judged on its own merit, it is hard to predict the outcome of a case unless the person preparing the petition has a good understanding of all relevant laws, requirements, and precedents. Therefore, professionals considering a NIW petition should evaluate his credentials and immigration objectives with a knowledgeable and experienced immigration attorney specializing in NIW petitions.