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National Interest Waiver: A Path to Employment-Based Immigration

Law Offices of Yu & Associates

Which is the best and quickest way to acquire a green card is a question that presents itself to every foreigner who wishes to remain in the US to work and live. One option is employment-based immigration, of which there are three basic categories for professional workers: First Preference (EB-1), Second Preference (EB-2) and Third Preference (EB-3). EB-1 is for aliens of extraordinary ability in areas such as science, art, education or business; outstanding researchers or professors; and management personnel of multinational companies. This category does not require a US employer or labor certification. For EB-2 and EB-3, meanwhile, a job offer from a US employer is required, and one must apply to the Department of Labor for labor certification before submitting an immigration petition. If you do not meet the requirements for EB-1, however, there is also path within the EB-2 category which avoids the labor certification process ĘC that is, the National Interest Waiver (NIW).

The advantages of NIW are that you do not need a job offer from a US employer or to go through the tedious labor certification process, and also, the processing time is a bit faster than for the other categories. Even though you can't submit an immigration petition and adjust status at the same time ĘC that is, you can't submit an I-140 and I-485 at the same time ĘC NIW does have an advantage. You won't have to spend a lot of time and money on the labor certification process. Because of this, NIW is the path to immigration of choice for professionals holding a master's degree or higher.

Basic requirements for National Interest Waiver petition

US immigration laws do not set out a clear or detailed definition or standard for the NIW category. Instead, the requirements for NIW petitions have been gradually shaped by a series of legal cases. In the past, NIW cases were decided based on standards set out in the case of New York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Comm. 1998). After NYSDOT, in order to successfully petition for NIW classification, the applicant had to meet the following requirements: 1) The applicant's work had to be of intrinsic merit; 2) The applicant's work had to be in the national interest of the United States, and had to be national in scope; 3) The applicant had to prove that if he or she were required to undergo labor certification, it would be contrary to the US national interest.

In December 2016, USCISí»s Administrative Appeals Office (AAO) set a new case, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), as the precedent for NIW. Dhanasar replaces and overturns the 1998 NYSDOT decision. The US Citizenship and Immigration Services (USCIS) officers are now required to follow a new standard, which has three parts:

  • The applicant's proposed endeavor has both "substantial merit and national importance";
  • The applicant is "well positioned to advance the proposed endeavor"; and
  • The United States would benefit "on balance" if the job offer and permanent labor certification requirements are waived.

As a result, applicants no longer have to prove their work is "national in scope," but it must have "national importance" (i.e. it must be very important to academia, government, and/or industry, etc.) and the applicant must be "well positioned" for the work, for instance through having special skills or a record of success. Instead of showing that the national interest would be harmed if the applicant has to undergo labor certification, the applicant must show that the US national interest will benefit from having the job offer and labor certification requirements waived.

Which kinds of professionals are eligible for the National Interest Waiver?

Although USCIS has not issued a formal definition of the NIW category, they have laid out seven key factors for determining whether an applicant's work is in the national interest:

  1. A US government agency requests that the applicantí»s immigration petition be approved; or
  2. The applicant's work improves training and education for children or workers; or
  3. Improves public health or medical treatment; or
  4. Provides better housing for the poor, youth or the elderly; or
  5. Benefits the environment or improves conservation of resources; or
  6. Advances the US economy; or
  7. Improves working conditions or salaries for US workers.

Although these factors may seem very simple, their scope in fact includes quite a few areas including economy, medicine, biology, environment, housing, technology, and education. A professional who has achievements in any of these areas which contribute to the national interest may apply for NIW. Many people don't understand which fields and types of work are eligible for NIW, or whether they themselves meet the standards for NIW, and therefore waste a lot of valuable time before applying. In fact, all that matters is whether the applicant's work is related to some area of national interest to the United States and that you have documentation to back it up, even if it's in a usually overlooked area of work. Among the NIW cases we've handled in the past, there are a few very popular fields such as medicine and life sciences, but there is also no lack of other fields, such as computer programming and financial analysis. One of our clients, a Ph.D. student at the University of Maryland, conducted research on low-income housing. Although this is not a well-known field, through our well-reasoned case showing that her work met the NIW requirements, her petition was approved.

The key to whether a case will succeed or not is the amount of documentation, as well as the attorneyí»s experience and reasoning in your case. If the attorney handles the case properly, then even a professional in an area that seems only distantly related to the national interest can be successful.

Recommendation letters

Recommendation letters are one of the most important parts of the NIW petition, and also a crucial basis for USCIS to evaluate your case. The quality of the recommendation letters affects the success of the whole case. The important thing about the letters is not their length, but whether the content is relevant, substantial, and can convince the immigration officer that the applicant really is beneficial to the US national interest. Two to three pages is the recommended length for NIW recommendation letters. The recommendation letters should be concise and emphasize the main points, strongly presenting the applicant's contributions and how his or her work has affected the US national interest.

Request for Evidence

The documentation for an NIW petition should be as strong and complete as possible in order to be approved at once, and not receive a Request for Evidence (RFE, also called a kickback notice). Cases which receive an RFE can generally be divided into two types: the first type is petitions with weak documentation, where the applicant's qualifications are actually far from the standard for NIW; the second type is petitions where the applicant is strongly qualified, but because of inadequate organization or reasoning, the petition receives an RFE.

If your petition falls under the second type, there are remedial measures which can be taken. After receiving an RFE, you should consult an experienced attorney to find out if there is any way to fix the situation. We've encountered many cases of professionals applying for NIW on their own and receiving an RFE. Through the combined efforts of the applicant and our office, we are usually able to save the case. In one case, the client was a software developer for satellite communications whose H-1 visa had already been extended for 6 years and whose labor certification application had been waiting for 4 years without results, therefore he decided to apply for NIW on his own, and received an RFE. After looking over his case, we determined that although his documentation was not particularly strong, based on our experience, he still had a chance of being approved. The problems were that his documentation was rather average, his wording was not appropriate and didn't capture the essence of the NIW requirements, and his references were not suitable. With our help, he gathered supplementary materials and we sent the case back to USCIS, and to our surprise, it was approved in 12 days. His I-485 was also quickly approved, since his priority date was fairly early. The client was overjoyed, and we were also gratified that through our hard work, the client's problem was resolved and he was able to settle down in the US.

The above is a general introduction to immigration policies, and should not be construed as individual legal advice. For specific legal questions, please contact the Law Offices of Yu & Associates. Attorney Xiaohui (Sharon) Yu is a graduate of New York University School of Law, one of the top five law schools in the US, and has practiced law at some of the top firms in the US, UK and China.

Tel: 301-838-8986, Fax: 202-595-1918; E-mail:, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

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