National Interest Waiver

National Interest Waiver

 

National Interest Waivers (NIW) fall in the employment based immigration second preference EB-2 category.  The NIW is a waiver of the job offer requirement for foreign nationals who would like to obtain permanent residence in the United States under the EB-2 category. Under normal conditions, labor certification is required in EB-2 visa cases, in which the U.S. employer must show that there are no qualified U.S. employees to fill the position offered.   In the case of a National Interest Waivers, the labor certification process is waived, if it is in the best interest of the United States.   In other words, the applicant must show that if labor certification were required, the United States would suffer a loss that could otherwise be prevented if labor certification were waived.

 

USCIS Eligibility Requirements for the National Interest Waiver

National Interest Waivers are most commonly granted to those who can prove that they have exceptional ability, and that their employment in the United States will greatly benefit the U.S. economy.  In the application process, the noncitizen must show that they have exceptional ability in a field that can substantially benefit the nation and its people.  National Interest Waivers are most commonly granted to prominent researchers and professors whose work has great social and economic potential for citizens of the United States.

The waiver is available to individuals who meet the following requirements:

  • Are members of the professions holding advanced degrees and individuals of exceptional ability in the arts, sciences, and business
  • Have a job offer and the employer must obtain an approved "Labor Certification" from the Department of Labor

The National Interest Waiver relieves the petitioner only from the Labor Certification process. A petitioner requesting a National Interest Waiver on behalf of a qualified alien physician, or an alien physician self-petitioning for second preference classification, still must meet all eligibility requirements for this immigrant classification in order to be eligible for the National Interest Waiver.

How can I prove that I deserve a National Interest Waiver?

 

As there is no statutory or regulatory definition of the term “national interest”, USCIS relies on a 1998 Administrative Appeals Office precedent decision setting forth a three-prong test for evaluating requests for a national interest waiver.  This is referred to as the “NYSDOT” case.

 

Below are the three key requirements you must fulfill to demonstrate that your request to waive the job offer requirement and, therefore, the labor certification, is in the "national interest." For each requirement, we have included forms of evidence that you may submit to meet the requirement and other tips to help you prepare your petition.

1.  You must show that you plan on working in the United States in an area of substantial intrinsic merit

 

Under the first prong of the NYSDOT test, it is important for you to focus on the proposed employment. USCIS will look at your documents to determine whether the importance of your proposed work is readily apparent.  Some of the evidence you may submit to demonstrate that you plan on working in the United States in an area of substantial intrinsic merit includes:

  • A letter from you and/or your company describing the work and its importance
  • Articles or other published media discussing your and/or your company’s work and its importance
  • Letters from experts in the field attesting to your work and its importance
    • Testimonial letters should include information about the expert’s own credentials, such as a C.V.

2.You must show that the proposed impact of your work is national in scope.

 

While your employment may be limited to a particular geographic area, you must establish a benefit to more than a particular region of the country. Under the second prong of the NYSDOT test, you must demonstrate that the proposed benefit to be provided will be national in scope. USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field. Some of the evidence you may submit to demonstrate that the proposed impact of your work is national in scope includes:

  • Published articles or media reports
  • Copies of contracts, agreements, or licenses showing the scope and impact
  • Letters from current and former employers discussing your work and its national importance
  • Letters from experts in the field attesting to your work and its national importance
    • Testimonial letters should include information about the expert’s own credentials, such as a C.V.

3.  You must show that waiving the labor certification requirement would benefit the national interests of the United States.

The purpose of the labor certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. Thus, when deciding whether to grant a waiver of the labor certification requirement, USCIS looks at all of the evidence to see whether the national benefits you offer are so great that they outweigh the national interests inherent in the labor certification process. This means that your evidence must show that you serve the national interest to a substantially greater extent than the majority of your colleagues and that you have a degree of influence on your field that distinguishes you from your colleagues. The national interest evaluation is prospective. This means you must show that you have a past record of specific prior achievements that indicate future benefits to the national interests of the United States.

Demonstrating that your business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify you for an NIW.  However, you still have to show that the creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Some of the evidence you may submit to demonstrate that waiving the labor certification requirement would benefit the national interests of the United States includes:

  • Copies of published articles that cite or otherwise recognize your achievements
  • Copies of grants or other funding you received listing the amount and terms of the grants, as well as the principal and co-investigators
  • Documents showing how your work is being implemented by others, for example:
    • Contracts with companies using your or your company’s products
    • Documents showing licensed technology that you and/or your company invented or co-invented, and how that licensed technology is being used by others
    • Patents or licenses awarded to you and/or your company with documents showing how they are being used and why they are significant to your field

Insufficient evidence for a National Interest Waiver

The NYSDOT case provided several following guidelines regarding insufficient evidence to prove National Interest:

  • It is not sufficient for the petitioner simply to enumerate the alien’s qualifications, since the labor certification process might reveal that an available U.S. worker has the qualifications as well.
  • It cannot suffice to state that the alien possesses useful skills, or a unique background, it must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.
    • In addition, unique skills and knowledge should be also compared with other peers’ abilities and shown as significantly better.
  • It cannot be argued that an alien qualifies for a national interest waiver simply by virtue of playing an important role in a given project, if such a role could be filled by a competent and available U.S. worker.
    • Rather it should be demonstrated that alien is in the key role and the project would be jeopardized without alien. U.S. worker with same qualification cannot replace such alien.

With regard to the unavailability of qualified U.S. workers, the job offer waiver based on national interest is not warranted solely for the purpose of ameliorating a local labor shortage, because the labor certification process is already in place to address such shortages. Similarly, the Department of Labor allows a prospective U.S. employer to specify the minimum education, training, experience, and other special requirements needed to qualify for the position in question. Therefore, these qualifications, taken alone, do not justify a waiver of the certification process which takes these elements into account.

  • Shortage of U.S. workers in the field of endeavor should not be used as an argument for National Interest Waiver. Rather the proposed employer may prove that he couldn’t find such a unique US expert comparable to applicant with same minimum qualification.
  • The petitioner’s subjective assurance that the alien will, in the future, serve the national interestcannot suffice to establish prospective national benefit.
  • It is better to show already valuable tangible achievements which are some kind of guarantee of future benefits.
  • Innovation is not always sufficient to meet the national interest threshold.
  • Practical application and successful commercialization of patent should be demonstrated.

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