Q: What is the National Interest Waiver?
A: The National Interest Waiver is an immigrant petition for lawful permanent residence under the employment based second preference (EB-2) category. The usual requirement is for a labor certification application certified by the Department of Labor (DOL) and a permanent offer of employment in the U.S. However, these requirements may be waived for qualified individuals in the field of sciences, engineering, technology, education, arts, professions, or business if they are either members of the professions holding advanced degrees or foreign equivalent or those without an advanced degree but with “exceptional ability” who will “substantially benefit prospectively the national economy, environmental, health, science, research and development, cultural or educational interest, or welfare,” of the U.S.

Q: Who is eligible for the NIW?
A. In 2016, the USCIS Administrative Appeals Office (AAO) precedent decision commonly known as Dhanasar clarified the criteria for determining the definition or meaning of “National Interest” as follows.

To qualify for the waiver, the foreign national must demonstrate three things:
1. The foreign national’s endeavor is of substantial merit and national importance;
2. The foreign national is likely to advance their proposed endeavor; and
3. On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification.

Q: What is considered “substantial merit and national importance”?
A: The requirement of “substantial merit” may be satisfied within a range of specializations, including business, technology, science, health, culture, education or entrepreneurialism. It is not necessary to establish a quantifiable or immediate economic impact, although this evidence is considered favorably in the application. Efforts related to research, pure science, and the pursuit to further human knowledge are most likely to translate into direct economic benefits for the U.S.

To meet the requirement of “national importance,” the AAO has stated that it will consider the foreign national’s potential impact. This impact may be within the immigrant’s field of specialization nationally or on a global scale. Even endeavors that focus on one geographic area of the U.S. may be deemed to have importance on a national scale.

Q: How does the immigrant demonstrate they are likely to advance in their proposed endeavor?
A: To demonstrate that the immigrant is well-poised to advance their proposed endeavor, the USCIS will consider factors including education, skills, knowledge and record of success in similar efforts which may include published works, citations, patents, and presentations at well-recognized organizations within the specialization, employment in critical or essential position by a reputable organization, judge or panelist of the work of other peers in the field, as well as plans or models for future activities and the interests of any potential customers, users, investors, or other relevant individuals or entities. These factors will be evaluated together to establish whether the immigrant is likely to advance in their future endeavors. Please note that petitioners are not required to demonstrate that their endeavors are more likely than not to succeed, only that they are well-positioned to advance the proposed endeavor.

Q: How to determine whether it is beneficial for the U.S. to waive the requirements for a job offer and labor certification?
A: The USCIS may evaluate whether it would be impractical for some individuals, such as entrepreneurs or self-employed individuals, to obtain a job offer or labor certification. They may also look at whether, even if other qualified U.S. workers are available, that the U.S. would still benefit from the immigrant’s contributions, and whether the national interest is urgent enough to forgo the labor certification process. These factors are taken together to determine whether it is beneficial to the U.S. to issue the National Interest Waiver.

To be eligible for the NIW, a preponderance of evidence substantiating the above criteria is required for the USCIS to approve the petition as a matter of discretion.

Q. Why should one choose the Immigrant Work Visa based on National Interest Waiver?
A. Faster processing time than employer-sponsored PERM Labor certification
(2) no advertising requirements; and
(3) no employer sponsorship required.

Q. What are the documents required from the Applicant to prove National Interest Waiver Eligibility?
o A. Resume: detailed education and job history. Indicate dates, location, name of school, major subject, and diploma/degree. Provide a detailed list of publications, presentations, awards, certificates, reviewership, membership in professional organizations.
o Copies of diplomas, transcripts for all educational programs, training certificates, credential evaluations
o Copies of articles/publications written by or about the applicant
o Copies of presentations or program by the applicant
o Copies of membership cards/certificates for trade, professional organizations
o Copies of any awards received
o List of citations to your work (e.g. Google Scholar) or copies of papers or presentations citing your work
o Recommendation letters from employer and other experts in your field with their CV (5 to 8 ) (our services include providing templates and editing the letters to showcase the applicant’s original contributions of national importance impact in the field)
o Applicant’s detailed personal statement regarding your educational background and career and your current work that you consider is in the national interest
Q. Do I have to hold a PhD diploma or be a scientist to qualify for the National Interest Waiver?
A. No, as explained above, to qualify one has to be a member of the professions holding advanced degree or foreign equivalent or someone with “exceptional ability” who will “substantially benefit prospectively the national economy, environmental, health, science, research and development, cultural, business, or educational interest, or welfare,” of the U.S.

This article is provided for information purposes. Should you have any questions or be interested to learn more about the National Interest Waiver, contact our office at contact@cugasanalaw.com or call us at (281) 809-5599.

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