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National Interest Waivers
National Interest Waivers can offer an excellent and relatively streamlined permanent residence solution for some foreign nationals. These particularly include:
- Those who work in jobs where they receive U.S. government funded support for their research or work, such as US Agency for International Development (USAID); U.S. Department of Agriculture (USDA), Environmental Protection Agency (EPA) or the National Institutes of Health (NIH).
- Those who would be subject to the growing EB-1 backlog, where the NIW case, which fits into the Employment Based Second (EB-2) category, would allow for faster I-485 permanent resident case filing and approval;
- Where the character of the work resonates with the national interest due to its outsized impact on the foreign national’s field; and/or
- Where the foreign national lacks a Ph.D. but has a master’s degree, the equivalent to a master’s degree , or exceptional ability.
The Standard for the NIW Category
There are two stages to attaining a NIW approval. The petitioner must meet the burden of proving:
- An Advanced Degree or Exceptional Ability. The beneficiary must have an advanced degree (such as a Ph.D. degree or Master’s) or the equivalent, which is generally defined as a bachelor’s degree and five years of progressive, post-bachelor’s experience, or prove that he or she has exceptional ability. Exceptional ability may be proven by submitting compelling evidence in at least three areas, such as a relevant degree, letters proving at least 10 years of experience in the occupation; a license in the field, salary commensurate with exceptional ability; membership in relevant professional associations; recognition in the field, or other comparable evidence; and
- National Interest Waiver. The beneficiary must prove that he or she meets the following standard for NIW:
- The beneficiary’s proposed work has both substantial merit and national importance;
- The beneficiary is well-positioned to advance such proposed work; and
- When balancing the factors, it would be in the United States’ national interest to grant the beneficiary of the normal job offer and labor certification requirements.
No job offer is required and the beneficiary can “self-sponsor” and file his or her own NIW petition. A significant percentage of our clients are self-petitioners while some are sponsored by their organization.
Even where one does not have a job offer, one must show one’s intention to work in the U.S. in the area in which the self-petitioner has expertise. The category is generally considered to be less exclusive than the EB-1 Extraordinary Ability category, at least since the 2016 Administrative Appeals Office (AAO) precedent decision known as Matter of Dhanasar (26 I&N Dec. 884).
The NIW category is more flexible than the Employment Based (EB-1) Extraordinary Ability (EA) and Outstanding Researcher and Professor (ORP) categories in many respects. While one can also self-sponsor in the EA category, the standard is extremely high and many such petitions draw a Request for Evidence (RFE) challenge from U.S. Citizenship and Immigration Services (USCIS). The ORP category requires employer sponsorship and some employers are not eager to engage in such sponsorship in terms of the time, effort and investment involved. NIW offers a flexible solution to many that cannot gain employer sponsorship or whose credentials fit this category better, such as those that receive funding for their work from a U.S. government agency or whose work is applicable on a broad geographic (country wide) scale.
However, the NIW category can also be unpredictable because a USCIS officer must make a judgment call about whether the proposed work has substantial merit and is of national importance, how well positioned the foreign national is to advance it, and whether it is in the national interest to waiver the normal job offer and labor market (certification) requirements.
We apply our experience to help employers, universities and self-petitioners evaluate their relative odds of success given NIW case trends. Such evaluation is not scientific, like the occupations of many of our clients are, and that can be frustrating particularly to those in scientific or engineering occupations. For example, no honest lawyer can say whether a potential candidate for NIW has a 67%, 43%, or 87% chance of approval. But, based upon our case experience and our following recent trends, we can provide a ballpark assessment of the relative odds of success of a case, identify case strengths and potential weaknesses, and help clients to collect evidence that may lessen the risk of a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) challenge or a denial.
Similar to an engineer that uses reverse engineering analyses and runs predictive models to identify flaws that may derail the manufacture of a quality product, we work collaboratively with our clients with the aim of honestly evaluating evidence and determine what evidence the beneficiary may be able to collect to improve his or her odds of success. Where a client was born in a country such as India or China and is subject to major EB-2 backlogs that make NIW a slow-moving solution, we also help collect the evidence in a fashion that may facilitate a possible future EB-1 “upgrade” petition, where the NIW EB-2 priority date can be attached to the future EB-1 case.
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