Immigration Law Associates
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National Interest Waiver (NIW) Q & A

Is there any work that is not national in scope?
immigration attorney lawyer chicago permanent resident national interest waiver niw national scope request for evidence journal award citation reference approvalIt is difficult to think of any science or technical work that would not be national in scope from some standpoint. In fact, the beneficiary in a well-known NIW case was an engineer who worked on roads in New York State only. His work was nonetheless found to be national in scope because travelers from other states used those roads. However, a thorough evaluation of a potential NIW case should still include this aspect of it – just to be sure.

Can I work in private industry and get an NIW?
NIWs are well suited for owners and key employees of start-up businesses. The endeavor must conform to NIW requirements (be of substantial merit and national importance); and the individual must show he or she is well prepared to carry out the effort. The category is less suitable for professionals employed by larger, well-established businesses. However, if the beneficiary is working on a big federal contract, or there is other strong evidence linking national interests to the beneficiary's employment, approval is possible.

How many citations do I need to gain case approval?
Since late 2016, when the USCIS revised its NIW analytic framework, citations are not essential for case approval. The beneficiary must show that he or she has the background and accomplishment to begin or continue a project the USCIS finds "of substantial merit and national importance." This can be done in many ways, including through letters from experts in the field detailing the beneficiary's work in technical terms and explaining why it fulfills the requirement.

What other ways are there to show I am well-positioned to advance my work on the proposed project?
In addition to letters, any evidence that shows you have been successful and skilled at your research will be helpful. This might include for example a "best dissertation" award, inclusion as "key personnel" on a grant application, or inventorship on a patent.

Does being a peer reviewer for a journal help my case?
It might, if your review is detailed and shows your thorough knowledge of the field. Any correction the author made on your recommendation would add to the evidence. Also helpful is being a journal editor or editorial advisor.

Does being a member of a professional organization help my case?
Membership in a professional organization is helpful if such membership is restricted to those with substantial accomplishment. Keep in mind the point is to show you are well prepared to carry out the proposed endeavor; therefore, membership in an organization must reflect skill and accomplishment, not just payment.

How many support letters should I have for an NIW case?
immigration attorney lawyer chicago permanent resident national interest waiver niw national scope request for evidence journal award citation reference approvalTechnically detailed letters from credible authorities familiar with the beneficiary's field are very helpful in establishing that he or she is well-prepared to do the work proposed. They should explain what the work is, why it important and discuss the beneficiary's success in having completed past related work. They may also review the beneficiary's credentials to show sound preparation and previous success. We recommend 3-4, drawn from different institutions.

Whom should I ask for support letters?
Established researchers, administrators, grant reviewers or others who can provide detailed technical descriptions of your work will be helpful. They should be able to assess the quality and importance of your work from an authoritative point of view. It is best to include those who work directly with you and those who do not

For my previous work to be good evidence, must I have done it in the U.S.?
No. For example, a foreign national award for outstanding research would show you are well-positioned to do further research. However, documentation of the award and its significance must be in English, either certified translations of materials or attestation from credible authority.

Does it help my case if I am awarded a prestigious honor after I file but before the case is decided?
In rare cases a Request for Further Evidence will state that the beneficiary's achievements subsequent to filing will be included in the evidence. In some cases, one can successfully make the argument that if a paper is honored in some way after case filing, the preceding research as well as peer review of the paper is evidence of impact. But it is safest to assume that nothing that occurs after the date of filing will be considered by the adjudicator.

How do adjudications standards differ between NIW, EB-1A and EB-1B?
immigration attorney lawyer chicago permanent resident national interest waiver niw national scope request for evidence journal award citation reference approvalNIW is a waiver used in conjunction with EB-2 cases. This is a lower standard than EB-1: Both EB-1A and EB-1B have criteria requiring specific levels of achievement (e.g. contributions of "major significance"), but all one need show for NIW approval is skill and accomplishment in a qualifying endeavor. In addition, the U.S. Immigration Service can be quite strict about enforcing the statutory standard in EB-1A, which requires membership in "that small percentage who have risen to the very top of the field of endeavor." EB-1B beneficiaries must meet only two criteria, so the evidence required is less, and there appears to be a bit more leeway than in EB-1A. Still the evidence submitted under the criteria must distinguish the beneficiary from others in the field.


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