Requirements For Petitioning For the National Interest Waiver (NIW)

Several considerations matter when deciding whether petitioning in this category is right for you. Every case is different and should always be reviewed by experienced attorneys, but a few general guidelines can help you judge whether the National Interest Waiver (NIW) fits your situation.

You Need to Qualify for EB-2 Category:

Qualifying under the NIW standard alone does not establish EB-2 eligibility. The NIW only waives the labor certification and job offer requirements that this preference category would otherwise demand. Before deciding whether NIW is the right category, a foreign national must first determine whether he or she qualifies for EB-2.

EB-2 Requirements: Advanced Degree or Exceptional Abilities

EB-2 requires the petitioner to either 1) hold an advanced degree or 2) claim exceptional ability.

Most of our clients meet the EB-2 requirements by showing an advanced degree, which can be done in one of two ways. First, the foreign national may hold an academic or professional U.S. degree above the baccalaureate level; a foreign degree also works if it is equivalent to a U.S. degree above that level. Second, without an advanced degree, the foreign national may qualify through a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive post-baccalaureate professional experience. USCIS treats that combination of a Bachelor’s degree and five years of experience as equivalent to a U.S. Master’s degree.

If neither advanced-degree pathway applies, the foreign national may instead show exceptional ability in the claimed area of expertise that is significantly above the level ordinarily encountered in that profession.

Once these minimum thresholds are met, the petitioner must also show a specific job offer, and the employer must obtain a labor certification from the Department of Labor (DOL). Outside the NIW context, the employer must petition on the beneficiary's behalf; clients cannot self-petition and must rely on a prospective employer. Because of these extra hurdles, beneficiaries often benefit from considering whether they can self-petition under the NIW standard.

NIW Standard Based on New AAO Decision - Matter of Dhanasar (December 27, 2016)

Once a foreign national establishes basic EB-2 eligibility, he or she must also establish NIW eligibility to avoid the job offer and labor certification requirements or to self-petition.

For years, USCIS treated the three-prong test in New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (“NYSDOT”) as the binding guidance for NIW petitions. The NYSDOT test reduces to three criteria a foreign national had to meet to qualify for the NIW:

1. The beneficiary's work must be in an area of “substantial intrinsic merit”;
2. The benefits of the beneficiary’s employment must be “national in scope”; and
3. The beneficiary must serve the “national interest to a substantially greater degree” than an otherwise available US worker with the same minimum qualifications, such that requiring a labor certificate would adversely affect the national interest.

On December 27, 2016, the AAO issued a new decision, Matter of Dhanasar, revisiting the framework for assessing eligibility for “National Interest Waivers”.

That decision vacated the NYSDOT test and established that USCIS may now grant a National Interest Waiver when the applicant satisfies these three prongs:

1. The foreign national’s proposed endeavor has both substantial merit and national importance;
2. The foreign national is well positioned to advance the proposed endeavor;
3. On balance, waiving the job offer and labor certification requirements would benefit the United States

1. Substantial Merit and National Importance

To show that the foreign national’s proposed endeavor has both substantial merit and national importance, the applicant must show that the work relates to an important national goal and benefits the United States. Merit may be demonstrated in areas such as business, entrepreneurialism, science, technology, culture, health, or education. In assessing national importance, USCIS considers the endeavor's potential prospective impact, evaluating it not only in geographic terms but also in its broader implications.

The new AAO decision broadened the framework for evaluating the “national importance” of an applicant’s endeavor. A physician at one hospital may appear to benefit only the region that hospital serves, but can show nationwide benefit through disseminated research publications or through new procedures or techniques adopted by hospitals outside that region. Most scientific research is easy to cast as nationally important, because advancement in a given area can readily be tied to a national goal such as healthcare or safety. We are also experienced, and have succeeded, in demonstrating national benefits for those in more unusual fields, including but not limited to musicians, artists, economists, and web-developers.

A few examples of previous clients whose work was found to have substantial merit and national importance:

• A postdoctoral researcher in medicinal chemistry who develops anti-viral and anti-cancer drugs contributes to the health of millions in the U.S.
• A civil engineer improving asphalt durability enhances U.S. infrastructure, safety, and transportation.
• A consultant in Petroleum Engineering improves U.S. energy-production efficiency and contributes to environmentally-friendly practices
• An opera singer brings the arts to society and adds to the body of knowledge on vocal health
• An animator advances American art and design;
• A gastroenterologist advances the diagnosis and treatment of digestive diseases, improving U.S. healthcare.
• An entrepreneur strengthens the U.S. economy and job creation.
• A research associate in economics contributes to U.S. risk management and economic growth.
• A medical researcher in oncology affects healthcare nationwide through research that advances cancer therapies
• A physician advances diagnostic practices that are implemented across the nation
• A postdoctoral researcher in electrochemistry improves battery performance for nationwide use
• A musician whose performances and CD sales reach a nationwide audience contributes to the artistic culture of the nation as a whole
• A geologist studying mineral-water reactions contributes to U.S. water safety.
• A web-developer builds web content used nationwide

2. Advancing the Proposed Endeavor

The second prong requires the foreign national to show that he or she is well positioned to advance the proposed endeavor. USCIS considers factors including, but not limited to: the individual's education, skills, knowledge, and record of success in related or similar efforts; a model or plan for future activities; progress toward the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. Petitioners must establish with substantial evidence that they are well positioned to advance the endeavor.

Evidence may include detailed expert letters showing U.S. government interest in the petitioner's research, documentation of a significant role in projects funded by government grants, and proof of the petitioner's education, skills, knowledge, expertise, and other notable achievements, such as memberships or media reports.

3. Balance Test to determine if National Interest Outweighs the Need for a Job Offer

The new third prong requires the foreign national to show that, on balance, the United States would benefit from waiving the job offer and labor certification requirements. USCIS may evaluate factors such as whether, given the petitioner's qualifications or proposed endeavor, it would be impractical to secure a job offer or obtain a labor certification. Other factors include whether the United States would still benefit from the foreign national's contributions even if other qualified U.S. workers are available, and whether the national interest in those contributions is urgent enough to warrant forgoing the labor certification process.

This favors entrepreneurs with a history of benefiting the United States through their venture and a reasonable projection that they can continue to do so

We are skilled at building arguments that address each requirement of this prong and at compiling sound evidentiary support for every claim we make. When gathering evidence for the third prong, consider the criteria for EB-1A (Alien of Extraordinary Ability) and EB-2 Exceptional Ability. The EB-1A standard is much higher and its evidentiary requirements much stricter, but those criteria still suggest what types of evidence can establish the alien's past record of achievement and the significance of the proposed endeavor.

Below is the evidence we commonly include with our EB-2 NIW (National Interest Waiver) petitions, with explanations of how each type can satisfy the NIW (National Interest Waiver) requirements.

1. Publications & Citation Records (including journal articles, book chapters, and books)
   Include a complete publication record to demonstrate the alien's past record of scientific achievement. Publication alone, however, does not show influence in the field. Pair the publication record with a citation record to demonstrate the influence of the alien's work and to show that other researchers are using it. Journal impact factors and average citation records for the field can further show influence above that of the average researcher. No "magic number" of citations guarantees NIW (National Interest Waiver) approval, and many strategies can offset a low citation record.
2. Letters of Recommendation
   Letters of recommendation are a crucial part of NIW petitions. Under the updated Policy Manual, they carry more weight when provided by experts with first-hand knowledge of the petitioner's achievements and are supported by other independent evidence (USCIS Policy Manual, Vol. 6, Part F, Ch. 5). Such letters should describe the petitioner's contributions clearly, explain their national significance in plain terms, and show how the petitioner is well positioned to advance the endeavor in the United States.
   
   By contrast, in O-1, EB-1A, and EB-1B petitions, USCIS generally finds independent recommendation letters from experts who have never directly worked, studied, or collaborated with the petitioner more persuasive, because they better prove sustained acclaim and recognition by the broader field rather than by dependent recommenders or close collaborators.
3. Government Funding/Grants
   Funding from reputable institutions or government agencies such as the US Military, NIH, or NASA strongly evidences the national importance of the foreign national's work. It is essential to show the foreign national's deep involvement in the funding application and his or her important role in the funded research after the award.
4. Membership 
   Memberships in the foreign national's field of expertise that require outstanding achievements as selection criteria can strengthen the foreign national's overall credentials.
5. Awards 
   To strengthen the NIW petition, awards ideally should be given specifically to the foreign national and be nationally or internationally recognized. Awards open to individuals at a single institution, city, or state/region/province carry less weight. For instance, an award from the American Chemical Society would likely be nationally recognized because it is the largest professional organization for chemists in the U.S.
6. Published Materials About the Foreign National 
   Media coverage can show the benefit of one's work to the U.S. Articles or published material help the NIW petition when they focus on the foreign national or the work he or she has performed in the field of endeavor, and when the outlet enjoys national or international recognition
7. Patents, Contracts, Licenses and Technology Transfers 
   A complete patent record with citation or commercialization evidence strongly helps demonstrate the utility of the foreign national's work and its adoption by industry. Contracts, licenses, technology transfers, and similar evidence also show implementation of that work.
8. Evidence of Others Relying on the Foreign National's Work 
   Requests for the foreign national's work or assistance from researchers at outside institutions indicate the impact and significance of the endeavor. Email correspondence and acknowledgements in major trade publications or major media are strong evidence.

In sum, present a range of evidence to show how the alien qualifies for a National Interest Waiver. Simply listing the alien's achievements is not enough. Take a holistic approach so that the petition, recommendation letters, and supporting evidence together prove qualification for a National Interest Waiver. That is our goal at Liu & Associates, P.C.: by keeping the three-prong test in mind at every step of case preparation, we ensure your petition addresses every aspect of the National Interest Waiver requirements.