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National Interest Waiver Qualifications

What is the National Interest Waiver?

What exactly qualifies as being “in the national interest”?

Neither the statute nor regulations define this phrase, so we cannot rely on the law as written to make the determination. The meaning of the phrase has undergone significant change in the recent past. For nearly two decades, to analyze the “national interest” issue, USCIS relied on a precedent decision from 1998, Matter of New York State Dep’t of Transp. (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). That changed in December 2016, when the Administrative Appeals Office (AAO) vacated NYSDOT in a new precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). The purpose of this change was to offer “greater clarity” and allow for more flexibility in advancing the purpose of the broad discretionary waiver to benefit the U.S. It is this decision which spells out the criteria for qualifying for a national interest waiver.

According to Dhanasar, in order to qualify for a national interest waiver, you need to satisfy three criteria.

Substantial merit and national importance

First, the foreign national must establish that his or her proposed endeavor has both “substantial merit and national importance.” This criterion focuses not on the foreign national, but rather, on the proposed endeavor the applicant intends to undertake. The merits of the endeavor may be in a wide range of areas, such as: business, entrepreneurialism, science, technology, culture, health, or education. Here, significant economic impact is not a required. However, such a potential would be viewed favorably. Thus, pure scientific research, which may further human knowledge still qualifies. This may not directly translate into economic benefits.

• In Dhanasar, the applicant, a self-petitioner, was a researcher and educator in the field of aerospace engineering. Specifically relating to air and space propulsion systems with potential use in military and civilian technologies. The AAO found this endeavor nationally important because it enhanced U.S. national security and defense.
• The focus on “national importance” reflects a change from the prior standard announced in NYSDOT. It looked at whether the endeavor was “national in scope.” Under the Dhanasar standard, an endeavor that has positive economic effects, perhaps in an economically depressed area, for instance, can be viewed as having national importance, even if it is not geographically “national in scope.”

Positioned to advance the proposed endeavor

For the second factor, we shift our focus from the proposed endeavor to the applicant. The objective is to demonstrate that he or she is “well-positioned to advance the proposed endeavor.” This criterion considers the foreign national’s education, skills, knowledge, and record of prior success in similar efforts. Here, USCIS will look to a model or plan for future activities. USCIS will want to determine any progress towards achieving the proposed endeavor. Dhanasar makes clear, however, that proving the likelihood of success is not an express requirement. This is because many innovations and entrepreneurial endeavors ultimately fail.

Beneficial to the United States

The final criterion is that, “on balance,” it would be “beneficial to the United States” to waive the requirements of a job offer and thus a labor certification. In certain cases, other factors outweigh the benefits inherent to the labor certification process. Factors that are in the national interest. This criterion also appreciates that a labor certification in certain instances is impractical or simply unworkable. For example, where the petitioner seeks to hire a foreign national with unique knowledge or skills. In alternative the proposed endeavor is entrepreneurial, or involves a self-employed inventor. Under the prior standard it was necessary to demonstrate how this would adversely affect or harm the national interest. That is no longer a requirement.

As the foregoing reflects, the most difficult facet of the national interest waiver process is building and documenting the case. The foreign national’s proposed endeavor has to have

“substantial merit and national importance,”.

The case must also demonstrate that he or she is “well-positioned to advance” the endeavor. The petitioner must prove he or she qualifies for the requested benefit by a preponderance of the evidence. And this for virtually every immigration benefit. This is a lenient legal standard. That is to say, proof described as “more likely than not,” or a “51% certainty” is a requirement. In other words, that the petitioner has proven up each of these three elements.

Geographically national in scope

On a positive note, under the new Dhanasar standard, it is no longer necessary to prove that the work performed by the foreign national is geographically national in scope. As the AAO put it, “[e]ven ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance…An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.” It is also sufficient to prove that the waiver would be “beneficial to the United States,” rather than proving that the national interest would be adversely affected, as was previously required. The relaxation of this standard offers considerable leeway in documenting eligibility for a national interest waiver.

Frequently Asked Questions on National Interest Waiver Green Cards

Important information you need to know about the National Interest Waiver

1. My work is “in the national interest”. Do I still have to possess an advanced degree or establish exceptional ability?
2. Wait—are you saying that I can file a petition for myself, a self-petition, without an employer?
3. Why should I file an NIW, as opposed to the normal labor certification route? What are the advantages? Isn’t a labor certification a safer option?
4. What steps involve national interest waiver cases?
5. How do I prove national interest to waive the job offer and labor certification requirements? What kinds of evidence will USCIS consider?
6. Are NIW petitions eligible for premium processing?
7. Will my spouse and children also get green cards?
8. Can you provide examples of positions that have qualified and/or failed to qualify for a national interest waiver?
9. I’m still waiting for those examples…
10. How important is it to hire an attorney to pursue a national interest waiver?
11. Does your office have experience with national interest waivers?
12. I think I qualify…what’s my next step?

My work is “in the national interest”. Do I still have to possess an advanced degree or establish exceptional ability?

Yes; to establish eligibility for a national interest waiver, you must first demonstrate that you qualify for the EB-2 category. This means either you must qualify as an advanced degree professional. In alternative you may qualify as an individual of exceptional ability in the sciences, arts, or business. The NIW only eliminates:

• The requirement of a job offer from a specific petitioner
• The corollary requirement of a certified labor certification from the Department of Labor.

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Wait—are you saying that I can file a petition for myself, a self-petition, without an employer?

Yes; to be clear, when applying through the national interest waiver component of the EB-2 category, the foreign national can file a petition. This can be done on his or her own, even without an employer. Even so, please note that a United States employer can nevertheless file a national interest waiver for an employee, just as it would in the ordinary case. The petition can be filed either way, with or without a petitioning employer.

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Why should I file an NIW, as opposed to the normal labor certification route? What are the advantages? Isn’t a labor certification a safer option?

The primary advantages to filing a national interest waiver are twofold:

• First, you don’t need an employer to file a petition for you
• Equally important, you don’t have to go through the labor certification process.

This is important for those who are entrepreneurial in spirit and don’t wish to work for someone else. Not having to recruit U.S. workers reduces the timeframe for filing an application for permanent residence. In addition, if you qualify, you will be in the second-preference employment-based category. Said category generally has visas available more quickly than in the third-preference. A national interest waiver case is more difficult to document and prepare. However, it comes with considerable benefits to make the risks worth taking.   

The EB-2 NIW also has less onerous eligibility criteria than an EB-1, which is much more burdensome to establish. The approval rates for EB-2 national interest waivers are much higher than approval rates for EB-1 petitions.

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What steps involve national interest waiver cases?

First, you must qualify for an EB-2. You must be either an individual with an advanced degree, or an individual of exceptional ability. The most common way to qualify is by holding an advanced degree. This is an academic or professional U.S. degree above a baccalaureate level (Master’s or Ph.D.). Foreign degrees qualify, too, provided they are equivalent to a U.S. degree. Also, you may qualify by holding a U.S. bachelor’s degree, or foreign equivalent degree. In addition you must have at least five years of progressive post-baccalaureate professional experience. Under USCIS rules, a bachelor’s degree plus five years of experience qualifies as the equivalent of a U.S. master’s degree.   

Qualifying for the EB-2 category

Without an advanced degree, the foreign national may also qualify for the EB-2 category as an individual with such exceptional ability in their claimed area of expertise. That is to say it is “significantly above that ordinarily encountered in the science, arts, or business”. To demonstrate this, the foreign national must meet at least three of seven criteria laid out in the regulations. They include, for example, an academic record, showing the possession of a degree, diploma, certificate, or award in the area of exceptional ability; evidence documenting at least 10 years of full-time experience in the occupation; evidence of a high salary reflective of exceptional ability; membership in professional associations; and, recognition for achievements and significant contributions to the field by peers, government entities, professional or business organizations.

Documenting the National Interest

Once basic eligibility is established, it must then be documented that it is in the national interest to waive the labor certification requirements by addressing the criteria described above-substantial merit and national importance, well-positioned to advance the proposed work, and on balance, it is in the national interest to waive the normal job and labor certification requirements. The immigrant visa petition (Form I-140) is then filed with USCIS accompanied by the above-mentioned evidence. For citizens of countries other than India or China (which has a current backlog for the second preference category), concurrent filing of the I-140 and the adjustment of status (green card) application is possible.

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How do I prove national interest in my specific case? What kinds of evidence will USCIS consider?

That’s an excellent question that requires a lengthy response. The type of evidence may differ depending upon the field in question. Some fields of expertise area also in a sense, easier to demonstrate. For example, few would question that pediatric cancer research is a field with substantial merit and national importance. In such a case, proving eligibility may be easier on the first criterion. It could prove be difficult in the second criterion. In fact the latter focuses on the foreign national and his or her own qualifications. But as a general guideline, this is the type of evidence which is helpful and useful to prove up a national interest waiver case. You may notice that some of the evidence overlaps with the basic criteria for the EB-2.   

Letters of Recommendation

letters from prominent members or experts in the field of expertise are an important part of a national interest waiver petition. Of course, letters from colleagues or co-workers, while helpful, have a less favorable impact than independent letters from individuals who have never worked or collaborated with you. These letters can come from national or international organizations or institutes or government agencies. They should discuss your research contributions and their importance and comment on how your work will benefit the U.S. and the field in question. We will help identify and select individuals who should write letters for you and also provide a clear roadmap for what the letter should include. It should go without saying that we will provide extensive feedback during the revision process of the recommendation letters.

Evidence of Government Grants or Funding

Projects that involve you or your work with is very favorable evidence, as it tends to reflect the national importance of the proposed endeavor. Funding on research from either government agencies, such as the National Institutes of Health (NIH), military, and NASA should and will be highlighted in your case if applicable. The higher your degree of involvement in the application for funding, the better.

Publications and Citations

Include any and all evidence of journal articles, book chapters, books, etc.. A full publication record will demonstrate your ability to advance the proposed endeavor and corroborate that you are an individual with scientific achievements. If the relevant article or journal publication has been cited by many others, this, too, will carry considerable weight as evidence. When others cite your publications, this demonstrates your influence in the field of expertise.

Memberships

memberships in organizations in the field of expertise, especially those with highly selective criteria, are an effective way of demonstrating the ability to advance the proposed endeavor.

Awards

any national or internationally recognized awards will demonstrate the foreign national’s influence in the field. All awards should be discussed since a lesser award, when combined with other evidence, may be useful.

Patents

proof that the foreign national’s work resulted in the awarding of a patent or was involved in a technology transfer/technology commercialization process is valuable evidence of at least two of the national interest waiver criteria.

Published Material About the Foreign National

Any articles or publications written about the foreign national and his or her work is highly valuable. Media coverage spotlighting the individual’s work is reflective of national or international recognition.

Evidence the Foreign National’s Expertise Was Sought Out

Proof that the foreign national’s assistance was sought either to review the work of others in the field or from outside institutions is proof that may satisfy national interest waiver criteria.

Proof the Foreign National’s Work has Created Jobs

Evidence of past achievements or proof the alien has create jobs or created economic value is excellent evidence for a national interest waiver petition.

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Are NIW petitions eligible for premium processing?

Unfortunately, not at this time. Processing times are presently at around 6 months, depending upon the service center with jurisdiction over the petition.

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Will my spouse and children also get green cards?

Yes, absolutely; your spouse and children under 21-years of age will all be eligible to file green card applications once your priority date is current.

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Can you provide examples of positions that have qualified and/or failed to qualify for a national interest waiver?

The short answer is “yes.” Certainly, we can give you some insight into the types of positions that have previously been approved (or denied) for national interest waivers. However, it is critical to understand that every case stands or falls on its own unique record, a record which we as your counsel will compile and present in the light most favorable to you.

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National Interest Waiver Examples

Once again, it is important to understand that every single one of these cases could have gone the other way, so to speak, had the evidentiary record been different. So, if you work in one of these fields, or hold one of these positions, you should not be discouraged by these examples. We offer them simply to give you a sense of what may or may not pass muster.
The following is a sampling of representative adjudications of national interest waiver applications at the Administrative Appeals Office.
First up, a grouping of sample approvals:   

National Interest Waiver approvals

• Research Investigating Cell Biology and Electrophysiology of Neurons, in Relation to Nanotechnology
  (Granted-Matter of M-M-, ID#77392 (AAO Jan. 4, 2017));
• Professor of Mathematics, Computational Modeling, Numerical Algorithms
  (Granted-Matter of L-X-, ID# (AAO March 16, 2018));
• Agribusiness Entrepreneur, Developing Natural Biostimulants Derived from Marine Algae
  (Granted-Matter of E-J-C-D-H-, ID#1519291 (AAO Sept. 19, 2018);
• Agribusiness Entrepreneur, Developing Natural Biostimulants Derived from Marine Algae
  (Granted-Matter of E-J-C-D-H-, ID#1519291 (AAO Sept. 19, 2018);
• Lead Research Chemical Engineer, Clean Energy Alternative Technologies and Sources
  (Granted-Matter of R-T-I-, ID#77341 (AAO March 27, 2017));
• Public Health Researcher Focusing on Oncology
  (Granted-Matter of S-M-M-S-, ID#1431363 (AAO Aug. 22, 2018));
• Biomedical Engineering Researcher, Developing Novel Drug Delivery Systems using Biopolymers as Carriers for Cancer Treatment (Granted-Matter of P-Y-G-, ID#1264440 (AAO June 5, 2018));
• Electric Engineer researching development of improved device fabrication methods and advanced optical imaging technology, including 3D printing technology, holographic video and volumetric displays
  (Granted-Matter of K-Q-, ID#1602741 (AAO Oct. 2, 2018);
• Lead Software Engineer, designing web user interface and integrating it with computing platforms to allow scientific researchers to manage massive data sets
  (Granted-Matter of T-U-O-A-, ID#77945 (AAO Dec. 29, 2016);
• Physician Researcher Specializing in Pathology and Cellular Biology to advance knowledge of molecular genetic basis of hematological malignancies
  (Granted-Matter of M-M-O-, ID#1901484 (AAO Jan. 17, 2019);
• Biostatistics Researcher
  (Granted-Matter of P-J-, ID#1412985 (AAO July 13, 2018);
• Surgeon and Breast Cancer Researcher
  (Granted-Matter of U-H-, ID#1483877 (AAO August 31, 2018);
• Researcher Investigating Molecular Treatments for Cardiovascular Disease
  (Granted-Matter of K-H-S-, ID#532240 (AAO June 7, 2017));
• Metallurgical Engineer proposing to improve mining industry and minimize negative impact on the environment
  (Granted-Matter of F-E-, ID#46885 (AAO March 20, 2017).

National Interest Waivers denied by the AAO

Next up, we offer a sampling of petitions denied by the AAO over the past couple of years:

Mathematics Teacher and Education Researcher

Denied because the petitioner failed to demonstrate she was well-positioned to advance her proposed endeavor- Matter of G-O-B-O-, ID#2338656 (AAO March 12, 2019));

Sports Coach (Swimming)

Denied because the evidence failed to demonstrate the prospective impact of proposed endeavor rose to the level of national importance, where work did not extend beyond her students and trainees-Matter of V-C-F-, ID#1850888 (AAO Jan. 2, 2019);

Clinical Physician and Pediatric Health Researcher

Denied-while finding her work had substantial merit and national importance, she failed to establish she was poised to advance the proposed endeavor as her work did not serve as an impetus for progress in the field or in clinical practice-Matter of M-Y-A-, ID#2696644 (AAO Apr. 9, 2019);

Industrial Hygiene Researcher in Silicosis

Industrial Hygiene Researcher in Silicosis (Denied-while finding his work had substantial merit and national importance, the petitioner failed to demonstrate a record of success or progress and thus, failed to prove he was well-positioned to advance the proposed endeavor-Matter of C-W-K-, ID#330051 (AAO June 13, 2017);

Entrepreneur and Computer Programmer/Software Engineer Researcher

Entrepreneur and Computer Programmer/Software Engineer Researcher (Denied-failed to establish the proposed endeavor and activities had both substantial merit and national importance-Matter of R-S-, ID#1563749 (AAO Sept. 24, 2018);

Special Education Teacher, Students With Disabilities

Denied as not proving national importance, although foreign national established ability to advance the proposed endeavor-Matter of M-L-M, ID#551702 (AAO Oct. 5, 2017));

Building Information Modeling Specialist in Sustainable Architecture Design

Denied for failing to establish prospective benefits of his work would extend beyond his firm for purposes of proving national importance-Matter of J-L-, ID#386498 (AAO June 14, 2017));

Petroleum Engineering Data Scientist

Petroleum Engineering Data Scientist (Denied-finding his work to be of substantial merit and nationally important, but petitioner not well-positioned to advance the field-Matter of O-A-A-, ID#1285616 (AAO July 10, 2018);

Automation and Optimization Supervisor for Business Applications and Processes

Denied-finding petitioner’s work in software testing and SAP projects did not impact his industry, field, or the nation’s economy-Matter of V-A-, ID#353734 (AAO June 14, 2017).

In summary, it is worthwhile to repeat that each of these denied cases could have been documented differently and perhaps approved. The magic in national interest waivers is in the strategy, research, preparation and documentation.

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How important is it to hire a national interest waiver attorney?

For obvious (and not-so-obvious) reasons, we strongly believe that hiring the right immigration attorney to present your case is critical for its success. You need to hire an attorney that has familiarity with what USCIS has interpreted as being in the national interest, in order to identify potential candidates for this green card avenue; but at the same time, you need someone who will be honest with you about the likelihood of success in your case. And most importantly, you need to hire someone who will prepare a strong, compelling case spotlighting your strengths and strategizing the preparation in light of some of the issues discussed above. We do precisely that. Kaushik Ranchod is an experienced national interest waiver attorney with a team that can do precisely that.

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Does your office have experience with national interest waivers?

Attorneys at Ranchod Law Group, we have successfully prosecuted a number of national interest waiver applications and attained phenomenal results for our clients. We have worked with:

• Researchers
• Physicians
• Scientists
• Engineers

in a variety of fields.

National Interest Waiver for a Biologist

As a brief example of our work and experience in the field of national interest waivers, we secured a national interest waiver for a Microbiologist with a Ph.D. from a well-known university in the field.

• We emphasized his expertise
• Chose to highlight the numerous grants awarded the institution that funded several projects he worked on.

We provided extensive feedback edited during the revision process of letters prepared by his colleagues in the academic field. Our Immigration Attorneys prepares a detailed supporting brief persuasively summarizing the foreign national’s qualifications. This was possible after conducting extensive research and documenting of the petition. Both the petition and application for a green card were approved in less than twelve weeks. We cannot guarantee this type of success in every case. But we are committed to excellence in every respect. We promise our clients a fighting chance in every case we accept.

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I think I qualify…what’s my next step?

Why are National Interest Waivers in the sciences, arts, or business is a top immigration option

permanent residence as an advanced degree professional, or an individual of exceptional ability in the sciences, arts, or business

The National Interest Waiver (NIW), is embedded within the second preference employment-based category (EB-2). It is a fantastic avenue to permanent residence for those who qualify.

• An offer of employment in the U.S. (By way of backdrop);
• A labor certification application certified by the Department of Labor (DOL)

Are obligatory prerequisites to the filing of an employment-based application for permanent residence:

As part of the Immigration Act of 1990, Congress exempted these two requirements. That is, if the applicant could demonstrate that it was not in the national interest in their specific case to require a:

• job offer
• labor certification.

The provenance of the so-called National Interest Waiver is a statute in the Immigration and Nationality Act, 8 U.S.C. §1153(b)(2)(B)(i), which states that USCIS:

“may, when the Attorney General deems it to be in the national interest, waive the requirements of subparagraph (A) [relating to the requirement of a job offer] that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.”

It, therefore, serves to “waive” the requirement that the individual’s services be required or sought by a petitioning employer. This, along with the collateral labor certification requirement. As the regulations put it, USCIS “may exempt the requirement of a job offer, and thus of a labor certification… if the exemption would be in the national interest.” 8 C.F.R. §204.5(k)(4)(ii).

Bypassing the Labor Certification or (PERM) process

The NIW program, therefore, bypasses the Labor Certification (or, Program Electronic Review Management (PERM)) process. The PERM, or labor certification process constitutes a test of the labor market. Accordingly, the DOL makes the determination that there are not sufficient U.S. workers who are able, willing, qualified, and available at the place where the work is to be performed. Consequently, the employment of the applicant will not adversely affect the wages and working conditions of similarly employed U.S. workers. The NIW is in effect a judgment that the foreign worker will serve the national interest. That is to say, this worker will serve the national interest considerably more than any U.S. worker with similar qualifications.

The EB-1 Category

It is the rare instance where the interests of U.S. workers take a backseat to the immigrant applicant. Consequently, the foreign national is placed in the more favorable second preference (EB-1) category. There is also the reduction of time from filing until adjudication of the Green Card. Because of the PERM’s test of the labor market, including mandatory recruitment of U.S. workers, an NIW can reduce the length of “time to Green Card ” by up to a year.

National Interest Waiver Attorney Kaushik Ranchod would be pleased to discuss with you the likelihood of success in your case. If you think that you may qualify for a National Interest Waiver, please contact our team at (916) 613-3553.

Send us an email at: info@nationalinterestwaiverlaw.com

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