Who is Eligible For National Interest Waiver?

What Does it Mean to Request National Interest Waiver?

“Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States”.

What Type of Job is Eligible for Labor Certificates Waiver?

There is ambiguity around the definition of the Term “National Interest Waiver” (NIW):

• The jobs that qualify for a national interest waiver are not defined by statute
• National interest waivers are usually granted to those who have “exceptional ability” and
• Whose employment in the United States would greatly benefit the nation
• In addition to providing evidence of an advanced degree or exceptional ability, you must also meet the 3 National Interest Waiver criteria

What are the Criteria for NIW?

• The proposed endeavor has both substantial merit and national importance
• You are well-positioned to advance the proposed endeavor
• It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification

Summary of “exceptional ability according to USCIS definition:

• You must be able to show exceptional ability in the sciences, arts, or business
• “Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
• You must also meet three of the criteria below

Criteria for Exceptional Ability:

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
• Letters documenting at least 10 years of full-time experience in your occupation
• A license to practice your profession or certification for your profession or occupation
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
• Membership in a professional association(s)
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
• Other comparable evidence of eligibility is also acceptable

Is It Still an EB2 Visa?

• To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker
• Unless you are filing for a National Interest Waiver, in which case you can file a Form I-140, Petition for Alien Worker on your own behalf
• Hence, it is a special type of EB2 Visa, but you will not need an employer to sponsor you
• You can self-petition

Who Qualifies Under EB2 NIW (National Interest Waiver)?

1. A foreign national who is qualified under the EB2 visa and
2. A foreign national who passes the three-prong test in the Matter of Dhanasar decision:
3. The proposed endeavor is of substantial merit and national importance
4. Well-positioned to advance the proposed endeavor
5. A significant benefit for “national interest”

What Counts as an “Advanced Degree” for the  EB-2 visa?

Advanced degree for the purpose of EB-2 visa is the United States advanced degree (degrees above bachelors) or a foreign equivalent degree

Will a Bachelor’s Degree, be Okay Instead of Master’s or Above, are there Exceptions?

If the foreign national has only received a United States baccalaureate degree or a foreign equivalent degree:

• The experience of at least five years of progressive, post-baccalaureate experience in the specialty plus the bachelor’s degree will be sufficient for the advanced degree requirement

• Otherwise, the foreign national needs to show “exceptional ability.”
• The other group in the second employment-based preference includes foreign nationals with exceptional ability in the sciences, arts, or business
• Athletes may be considered
• Aliens of exceptional abilities in the arts for purposes of qualifying in the second employment-based preference

What are the Major Advantages of Applying for EB2 NIW (National Interest Waiver)?

1. No labor certification is necessary
2. No job offer or permanent job position is required
3. Self-petition is allowed
4. Most visas are current except for people born in China and India

Note: 

Your EB-2 priority date must be current to file your I-485 Adjustment of Status Application together with your NIW I-140

Hence, if your country of birth is India or China, you cannot do a concurrent filing since EB-2 priority dates for India and China typically are not current according to  the U.S. Department of State’s Visa Bulletin.

How Difficult is it to Have the EB2 NIW (National Interest Waiver) Approved?

• A foreign national seeking to meet the EB2 NIW standard must show that his/her qualifications are significant enough to prove “prospective national benefit “.
• The burden will rest with the foreign national to establish that exemption from or waiver of a job offer will be in the national interest. Each case will be adjudicated on its own merits
• If a beneficiary is qualified, the chance of success depends largely on the way the case is presented
• If the evidence is relevant and well presented, and the argument is made persuasively, there is a good chance of case approval
• But each case approval is up to the immigration
• officer’s discretion and not all officers adjudicate cases in the same way

What is the New Standard to Determine an EB2 NIW (National Interest Waiver)Case?

The decision Matter of Dhanasar (released on 12/27/2016) established new standards for obtaining EB2 NIW petitions that the USCIS adopted. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for an EB2 NIW:

1. Foreign national’s proposed endeavor is of substantial merit and national importance
2. Foreign national is well-positioned to advance the proposed work, and
3. On balance it would be beneficial to waive the job requirement for the foreign national

Substantial Merit:

• In the precedent case Matter of Dhanasar, the AAO stated that endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education
• Evidence to establish that the beneficiary’s proposed endeavor has substantial merit consists of, but is not limited to, the following:

1. A detailed description of the proposed endeavor and why it is of substantial merit; and
2. Documentary evidence that supports the petitioner’s statements and establishes the endeavor’s merit

How is an Endeavor to “National Importance” Defined in this Case?

In determining whether the proposed endeavor has “national importance”, the immigration officers consider its potential prospective impact.

Evidence to establish that the beneficiary’s proposed endeavor has national importance consists of, but is not limited to, the following:

1. A detailed description of the proposed endeavor and why it is of national importance
2. Documentary evidence that supports the petitioner’s statements and establishes the endeavor’s national importance. Such evidence must demonstrate the endeavor’s prospective impact, and may consist of, but is not limited to, evidence that shows the proposed endeavor:
3. Has National or even global implications within a particular field
4. Has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area:

1. Will broadly enhance societal welfare or cultural or artistic enrichment
2. Impacts a matter that a government entity has described as having national importance or is the subject of national initiatives

What Should a Foreign National Provide Demonstrate that he/she is “well-positioned to advance the proposed endeavor” Under the Matter of Dhanasar Decision?

An EB2 NIW petition needs to establish that the foreign national is well-positioned to advance the proposed endeavor-

• He/she has a strong standing in his/her field and can be reasonably expected to continue their work successfully in the U.S.

• Examples of evidence can be:
• Detailed expert letters that demonstrate the interest of the U.S government in the petitioner’s research
• Documentation that the foreign national played a significant role in projects funded by governmental grants, and evidence of the foreign national’s education background, skills, knowledge, expertise, and other notable achievements in his or her field including notable memberships or media reports

What Factors Does the USCIS Consider to Assess if “it would be beneficial to the United States” to waive the job offer and labor certification requirements for the foreign national under the Matter of Dhanasar decision?

• USCIS may evaluate whether the projected benefits of a foreign national to national interest outweighs the necessity of a labor market test of seeking equivalently qualified U.S. workers
• A variety of evidence should be presented to demonstrate how the foreign national qualifies for a National Interest Waiver
• It is not sufficient to list the foreign national’s achievements
• A holistic approach must be taken to ensure that all together, the petition, letters of recommendation, and supporting evidence will prove that the foreign national is qualified for a National Interest Waiver

What Supporting Evidence will Best Show that the Foreign National will Significantly Contribute to the National Interest?

There is no minimum publication or citation limit.

Below is a list of evidence commonly included with EB2 NIW (National Interest Waiver) petitions:

Publications & Citation Records (including journal articles, book chapters, and books):

• A complete publication record should be included with the petition in order to demonstrate the alien’s past record of scientific achievement
• The publication record should be accompanied by a citation record in order to demonstrate the influence of the alien’s work on the field, and show that the work is being utilized by other researchers in the field
• Journal impact factors and average citation records for the field can be used to show that the alien has a degree of influence above that of the average researcher in the field
• It should be noted that there is no definite number of citations that will guarantee EB2 NIW (National Interest Waiver) approval, and there are many strategies that can be used to offset a low citation record

Letters of Recommendation

• Letters of recommendation are a crucial aspect of the EB2 NIW (National Interest Waiver) Petition

• Independent letters of recommendation (from those who have never worked or studied with you, collaborated with you, or advised your work), will carry much more weight with the USCIS than letters from dependent recommenders, and this should be taken into consideration when selecting recommenders
•  Letters of recommendation should discuss your research contributions and their significance in layman’s terms, and also comment directly on the benefit of your work to the United States
• Letters of recommendation are also a great opportunity to demonstrate the implementation of one’s work
• A letter of recommendation from someone who has utilized your work, and can explain how they have done so in the letter, is a great way to strengthen your case

Government Funding/Grants

• Funding from reputable institutions or government agencies such as US Military, NIH, NASA, etc. are strong evidence in showing the national importance of the foreign national’s work

• It is essential to demonstrate the foreign national’s high level of involvement in the application for the funding and his/her important role in the research related to the funding after it was granted

Membership

• If the memberships are in the foreign national’s field of expertise and require outstanding achievements as the selective criteria, the memberships can improve the foreign national’s overall credentials

Awards

• For awards to strengthen the EB2 NIW petition, ideally, they need to be given specifically to the foreign national and nationally/internationally recognized
• Awards open to individuals at a particular institution, city, or state/ region/ province are not as Influential

Published Materials About the Foreign National

• The benefit of one’s work to the U.S. can be shown by media coverage
• If the articles or published material used as evidence focused on the foreign national and/or the work which he/she has performed in the field of endeavor, and the media enjoys national or

international recognition, this will be helpful for the EB2 NIW petition

Patents, Contracts, Licenses and Technology Transfers

• A complete patent record, accompanied by citation or commercialization evidence is
• significantly helpful for demonstrating the utility of the foreign national’s work as being adopted by the industry
• Other similar evidence including contracts, licenses, and technology transfers are also demonstrative of the implementation of the foreign national’s work

Evidence of Others Relying on the Foreign National’s Work

• If the foreign national’s work or assistance was requested by researchers from outside institutions, this indicates the impact and significance of the foreign national’s endeavor
• Documentation such as email correspondence and acknowledgment in major trade publications or major media is good evidence

Examples of Clients Dobrina and her Team have Successfully Worked With:

DO YOU THINK THAT SOUNDS LIKE YOU?

In order to successfully navigate the complicated legal system, it is essential to work with experienced, knowledgeable immigration attorneys. Ustun Law Group, PLLC is based in Dallas, TX, and serves clients across the country. Our Team provides counsel in a number of areas such as employment, business, and corporate immigration law, as well as political asylum and family immigration cases.

You Can Read Our Case Summaries and results of NIW Cases Here: 

Curious if you are eligible for the EB2 NIW Category?

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