Frequently Asked Questions on National Interest Waivers

Frequently Asked Questions on National Interest Waivers

Can a Ph.D. student apply for a NIW petition?

 

Yes. Since a job offer is not required, a Ph.D. student may qualify for an NIW petition.

 

How many publications are required to meet minimum NIW requirements?

 

There is no minimum publication requirement. USCIS decides each petition on a case-by-case basis.

 

Would evidence of a labor shortage in the NIW beneficiary's profession be a factor?

 

No. The New York Transportation Case explicitly excludes labor shortages from being considered as a factor in waiving the job offer and labor certification requirement.

 

Besides NIWs, what other avenues exist to apply for an employment-based immigration petition without the necessity of a labor certification?

 

If you qualify for an employment-based, first preference petition, you do not need a labor certification. Within the first preference category, if you qualify as an "Alien of Extraordinary Abilities", you also do not need a job offer. For more information on the EB-1 preference category, please

 

Do I need to live within the U.S. to obtain an NIW?

 

No, an alien may reside either within the U.S. or in a foreign country and apply for an NIW. However, your NIW claim will be more difficult to establish if you are living outside the U.S.

 

What is a letter of recommendation?

 

A letter of recommendation is a letter written by an expert in the alien's field or some otherwise authoritative person in an allied or supported field. The letter discusses the abilities and accomplishments of the alien seeking an NIW as well as the importance of the alien's work to the national interest. Letters of recommendation are an important part of an NIW petition.

 

Whom should I contact to obtain letters of recommendation?

 

Letters of recommendation can be obtained from various sources. Generally, one would need to obtain recommendations from experts within your respective field stating that you have made a significant contribution to your field and have achieved a degree of recognition.

Other examples may include top-level management of prospective companies making use of the alien's work, and current and former employers. It is recommended that you include letters from those who have not worked personally with you but are still aware of your achievements since such letters are generally given more weight than those obtained from people who know you well.

 

How many letters of recommendation is necessary for a successful NIW petition?

 

There is no required minimum number of letters of recommendation set forth by USCIS. Generally, we include five to seven letters of recommendation in our NIW applications.

 

How strong must the letters of recommendation be?

 

The stronger the better. Preferably, the letters will enthusiastically extol the alien's abilities, talents, and accomplishments as well as the prospective benefits to be gained from the alien's work. Because the viability of the petition is largely dependent on the strength of these letters, having an experienced attorney's assistance during a petition’s preparation is an important factor in whether an NIW petition will ultimately be approved or denied.

 

Does your firm provide sample letters of recommendation?

 

Yes, we provide our clients with a relevant sample recommendation letter to use as a reference from our sample database which includes letters from a wide range of areas, including chemistry, physics, arts, medical research, petroleum engineering, and music.

 

If my boss is not willing to write a strong letter of recommendation for me, may I still obtain approval of an NIW petition?

 

It is not necessary to obtain a strong letter of recommendation from your current employer to have a successful NIW petition, although you should get such a letter if your employer is willing to provide one. If you obtain letters of recommendation from other experts to support an NIW claim, your case may be successful.

 

Does an artist or musician qualify for an NIW?

 

Yes. Artists and musicians may apply for an NIW.

 

If I do not have any published articles in journals in my field, may I still apply for an NIW?

 

Yes. There is no specific requirement that you need to have published articles in order to apply for or obtain approval of an NIW petition. However, having published articles could make an NIW petition stronger.

 

If I do not have any awards relevant to my field, may I still apply for an NIW?

 

Yes. There is no specific requirement that you need to have awards in order to apply for or obtain approval of an NIW petition. However, having awards could make an NIW petition stronger.

 

If I am not a member of a professional organization in my field, may I still apply for an NIW?

 

Yes. There is no specific requirement that you need to be a member of any professional organization, association, or society in order to apply for or obtain approval of an NIW petition. However, being a member of a professional organization, association, or society could make an NIW petition stronger.

 

I am not a member of any professional organizations in my field, but may join by paying a membership fee. Should I join the professional associations now in order to increase my chances of approval for an NIW?

 

Not necessarily. Being a member of a professional organization, association, or society can help a petition if the organization's membership is restricted to those who somehow distinguish themselves in their field. If the professional association is relatively easy to join, it may not be a factor in your NIW case.

 

I am considering applying under an EB-1 classification. May I also apply for an NIW?

 

Yes. You are not bound by only one immigrant petition (Form I-140). You may petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether the USCIS will approve any given case.

 

If I have already applied under another classification, is there any reason for me to try for an NIW?

 

Yes. You may want to apply for an NIW to improve your chances of getting a petition approved. It is impossible to predict whether the USCIS will approve any given case. If the other case is eventually denied, you may still get the NIW petition approved. In addition, some types of petitions require an employer sponsor and anyone approved under such a petition would be required to work for that employer for at least some time after the immigrant petition is approved. An NIW requires no employer sponsor, so an alien approved under an NIW will not be bound to any particular employer.

 

If I apply for an EB-1 and an NIW at the same time, is there any negative effect between the two petitions?

 

No, they are unrelated. One will not affect the other.

 

Between an NIW and an EB-1(a), which petition is recommended?

 

You should always keep in mind that filing both an NIW and an EB-1(a) petition concurrently is an option. However, each case is different. While overall approval rates from USCIS for EB-1(a) petitions tend to be lower, if your case is clearly strong enough, your chances for success are higher by applying for EB-1(a). However, if your case is not as distinguished as successful EB-1(a) cases, a NIW petition would be the most sensible approach.

 

If I have a Labor Certification pending, may I also apply for an NIW?

 

Yes. A Labor Certification process is done by the U.S. Department of Labor whereas the USCIS handles NIW petitions. If your Labor Certification is ultimately denied, then you still have a chance of getting an NIW approved. Either way, you need to petition for an adjustment of status or apply for an immigrant visa. Moreover, with a Labor Certification, you must petition under the employer who sought the Labor Certification and would be required to work for that employer at least some time after your immigrant petition (Form I-140) is approved. With an NIW you are not bound to remain with any particular employer.

 

If I have been denied a Labor Certification, may I still petition for an NIW?

 

Yes, assuming you otherwise would qualify for an NIW. The standards for NIWs and Labor Certifications are very different. A Labor Certification is based on a lack of available U.S. workers with minimum qualifications for the particular job. By contrast, an NIW is based on the alien being able to contribute to a greater degree than U.S. workers with minimum qualifications. For example, there could be a multitude of U.S. workers with minimum qualifications available for a particular job, but the alien worker is much better at this particular job than those with minimum qualifications are. Under such a circumstance, a Labor Certification would likely be denied, while an NIW would be more likely to be approved.

 

Can Letters of recommendation included in an EB-1 petition be used for an NIW petition?

 

No. EB-1 Letters of Recommendation will not be effective for an NIW petition since an EB-1 and NIW have different criteria.

 

If I have filed an NIW, when is my priority date?

 

Your priority date is the date that the USCIS receives your NIW petition.

 

May I apply for a change of status from NIW to F-1 status?

 

Yes, because NIW does not require a specific offer of employment. Thus, many students petition for NIW.

 

I am in J-1 status and subject to the two-year home country residency requirement. May I apply for an NIW?

 

Yes. However, you need to obtain either a J-1 waiver or satisfy its requirements before you may adjust your status to permanent resident or acquire an immigrant visa.

 

I am currently in J-1 status and subject to the two-year home country residency requirement. If I apply for a National Interest Waiver and get it approved, is my J-1 home country requirement waived?

 

No, a J-1 waiver and National Interest Waiver are two different things. A J-1 waiver is an application to waive the two-year home country residency requirement. A National Interest Waiver is a waiver of job offer and labor certification requirement incident to an immigration petition. Even if your NIW is approved, you are still subject to the two-year requirement. You need to obtain a J-1 waiver or satisfy the two-year home country residency requirement before you may adjust your status to permanent resident.

 

If my NIW is approved, may I adjust my status to permanent resident?

 

Generally, yes. It depends on whether an immigrant visa is available for you. For more information on Visa Bulletins, please

 

May I apply for an Adjustment of Status and file a NIW petition concurrently?

 

Yes, the advantage being quicker adjustment of status with your NIW approval.

After my NIW is approved, do I need to remain with my current employer?

 

No, provided you are the petitioner in the NIW petition.

 

After my NIW is approved, am I required to remain in the same field as my NIW claim?

 

Yes, you are required to continue to work in the field of your NIW claim and benefit the national interest of the U.S. If you venture into another area, the USCIS may deny your Adjustment of Status (I-485) or subsequently revoke your permanent residency.

 

What are the differences between an NIW and an EB-1?

 

While there are many similarities between an alien who qualifies for an NIW petition and an EB-1(a) or EB-1(b) petition (EB-1(c) is quite different), the qualifications for each of the different petitions is actually distinct. In an NIW petition, the alien seeks first to show that he/she is a highly qualified individual in his field (i.e. "Advanced Degree Professional" or "Alien of Exceptional Ability"). He/she also claims to have the capacity to contribute to the national interest to a greater degree than other highly qualified individuals in the field. Thus, the waiving of the standard job offer and labor certification requirement is warranted. By contrast a person who qualifies in an EB-1 category must show that he/she is a top or outstanding individual in his/her field. According to U.S. immigration law a top or outstanding individual is not required to get a labor certification to achieve employment based permanent residency. Please to learn more about EB-1.

 

Comments are closed.