Overview
The National Interest Waiver (NIW) immigrant visa category applies to foreign nationals with advanced degrees or exceptional ability, whose employment would benefit the national interest. The applicant must have substantial documentation evidencing that his or her work is in the national interest of the United States, in order for the U.S. Citizenship and Immigration Services (USCIS) to waive the general requirement of a job offer from a sponsoring employer who has advertised and recruited for minimally qualified American workers through the lengthy PERM labor certification process. Therefore, an applicant for a national interest waiver category may file an immigrant visa petition with or without sponsorship from a U.S. employer.
Eligibility
To establish eligibility for a National Interest Waiver (NIW) case, one must meet the following Matter of Dhanasar test.
The Applicant’s proposed endeavor has both substantial merit and national importance
To show substantial merit
- The Applicant’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education.
- Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required as an endeavor’s merit may be established without immediate or quantifiable economic impact.
- For example, endeavors related to pure science and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in these fields are likely to translate into economic benefits for the United States.
To show national importance
- USCIS considers its potential prospective impact.
- An undertaking may have national importance because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.
- Even undertakings that have, as their focus, one geographic area of the United States may be considered to have national importance. The test now is “national importance” and not “national in scope,” thus avoiding overemphasis on the geographic breadth of the endeavor.
- An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area may have national importance.
The Applicant is well-positioned to advance the proposed endeavor
- USCIS considers the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
- Not required to show that the endeavor is more likely than not to succeed.
On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
- USCIS may evaluate factors such as whether, in light of the applicant’s qualifications or proposed endeavor, it would be impractical either for the applicant to secure a job offer or for the petitioner to obtain a labor certification.
- This prong does not require a showing of harm to the national interest or a comparison against U.S. workers in the Petitioner’s field.
- This is a more flexible test that allows entrepreneurs and self-employed applicants to qualify.
Useful Qualities or Attributes
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- Publication of scholarly articles in highly ranked, peer-reviewed journals. The number of articles published is not necessarily the key factor. Rather, it is most important to establish the impact of the research discussed in the published papers. Citation records can be used to reflect this.
- Acting as a reviewer for a prominent journal, committee member for meetings and conferences of national organizations or societies, and/or reviewer of grant proposals submitted to national organizations or societies.
- Occupying a lead or critical role in scientific or research studies funded by a federal government agency and/or national organizations or societies. Simply participating in a well-known or highly regarded study will not necessarily convince USCIS that you have benefited the national interest.
- Presenting your work at prestigious national or international forums in your field.
- Receiving awards or other recognition for research accomplishments. Awards received in the academic context from institutions at which you are training or conducting research are generally not considered very persuasive by USCIS.
- Obtaining testimonials showing the originality and/or critical nature of your work.
Immigrant Visa Petition
An I-140 immigrant visa petition based on a National Interest Waiver category is not eligible for Premium Processing Service. Depending on immigrant visa availability, NIW applicants may file a concurrent adjustment of status application, or apply for an immigrant visa at a U.S. embassy or consulate abroad.
NIW immigrant visa petitions petitions may be filed only under the EB-2 second-preference category, and are not currently eligible for the USCIS’ premium processing service.
While the labor certification application (including posting and prevailing wage determination) requirement is waived in NIW petitions, the sponsoring employer (or the self-sponsoring foreign national) is still required to submit a signed ETA Form 9089 Application for Permanent Employment Certification when filing an I-140 immigrant visa petition with USCIS. Evidence of financial viability to compensate the foreign worker’s proffered wage or prevailing wage rate, whichever is higher, must also be provided. This can be documented by evidence of the employer’s current corporate tax return or audited financial statements. In a case where the sponsoring employer employs 100 or more workers, a statement from a financial officer of the company or organization which establishes the employers financial ability to pay is also acceptable.
The NIW petition must also provide substantial documentation evidencing that the foreign national’s work is in the national interest (i.e. it is in the national interest for USCIS to waive the requirement of a job offer from a sponsoring employer who has advertised and recruited for minimally qualified American workers through the lengthy PERM labor-certification process).
If immigrant visas are available and the priority date is current, the NIW applicant and his or her eligible family dependents — spouse and/or children below 21 years old — may file adjustment of status (green card) applications concurrently while residing in the United States, or apply for an immigrant visa at a U.S. embassy or consulate abroad if living abroad.
