National Interest Waiver (NIW)

National Interest WaiverWhen an alien seeks to obtain a Green Card under the EB2 category, he or she is ordinarily required to obtain a Labor Certification.  However, he or she can also ask the U.S. government to have the Labor Certification waived.  This process is referred to as a National Interest Waiver.  In order to meet the requirements of the National Interest Waiver, the applicant must show that the business he or she will conduct in the United States will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. This can be done by demonstrating that the applicant’s employment in the country is within the interest of the Unites States because of the alien’s qualifications and exceptional achievements.  Furthermore, it is not necessary for the applicant to have a petitioner to sponsor the Green Card; instead, he or she can apply through self-petitioning.

National Interest Waiver Eligibility

In order to demonstrate that you are eligible for a National Interest Waiver, you need to submit certain types of evidence.  This is usually a document-intensive and difficult task.

There is not a defined list of jobs that fall under the “national interest” category.  The definition of “national interest” is based on a 1998 decision of the Administrative Appeals Office, which sets out a three-prong test (three requirements) in the Matter of New York State Department of Transportation (“NYSDOT”).  This decision provides the guidance on which USCIS relies when making a decision with regard to a specific case.

 

National Interest Waiver Requirements – Three-Prong Test

Requirement 1:

The applicant must demonstrate that his or her intention is to work in the U.S. in an area of substantial intrinsic merit.

Under the first prong of the NYSDOT test, you must demonstrate to the USCIS the importance of your proposed employment in the United States and that your work is within an area of “substantial intrinsic merit.”  This can be shown by submitting the following documents:

  • A letter from you and/or your company, which describes your work and its importance
  • Media publications, which discuss the importance of your company’s work
  • Letters from experts in the field of your employment, which attest to the importance of your work

Requirement 2:

You must demonstrate that the impact your work will be national in scope – in other words, that it will benefit more than one specific region of the country. You can demonstrate the national impact of your work by submitting the following documents:

  • Articles and media publications
  • Contracts, agreements, licenses that evidence the scope and impact of the proposed work
  • Letters from your current and former employers discussing your work and its national importance
  • Letters from experts in the field attesting to your work and its national importance

Requirement 3:

You must show that waiving the labor certification requirement would benefit the national interests of the United States.

In order to obtain a waiver of the labor certification requirements, you must demonstrate that the national benefit of your proposed work is greater than national interest served by the labor certification process.

Under the USCIS guidelines, this means that you must demonstrate, through evidence, that you “serve the national interest to a substantially greater extent than the majority of your colleagues” and also that you have “a degree of influence on your field that distinguishes you from your colleagues.”  USCIS will look at your record of specific prior achievements to determine whether they indicate that you will bring future benefits to the national interests of the United States.

One of the ways to qualify for a National Interest Waiver is to demonstrate that your business will create jobs for American workers.  You must still show, however, that such job creation will serve the U.S. national interest to a substantially greater extent than the work of others in the same field.

Some of the documents you may submit to demonstrate that waiving the labor certification requirement would benefit the national interests of the United States include:

  • Articles or other sorts of publications that evidence your achievements
  • Documents detailing grants and funding received
  • Documents showing how other parties are using or implementing your work, for example:
    • Contracts with companies that use your or your company’s products
    • Documents that show licensed technology invented by you and/or your company, as well as how that licensed technology is being used by others
    • Patents or licenses awarded to you and/or your company, along with documents that show how they are being used and why they are important to your field

Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (917) 426-8227 or (248) 979-5390.  I accept clients from across the U.S. and around the world.  My law offices are conveniently located in Lower Manhattan, New York and in Troy, Michigan for in-person meetings.  For phone consultation, you can reach me from any part of the United States or abroad.