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National Interest Waiver - NIW

A National Interest Waiver (NIW) petition falls into the second-preference classification of employment-based immigration (EB-2). A regular EB2 immigration petition (I-140) is filed by an employer, and must have an approved labor certification to support the case. An NIW petition, however, can be filed by the candidate on his or her own behalf, and does't need a LC, because the work being performed is of national interest to the United States.

Since a job offer is not required, either an employer or an employee, or even an individual without a permanent job offer may file an NIW petition. This does't mean that many unemployed are stuffing the NIW pipeline; rather, it allows many qualified candidates to bypass their employers to save time and hassle in the lengthy green card process. In some cases, a person may have a regular EB application going, and then file an NIW case in parallel.

But the real benefit of NIW is the waiver of labor certification, which can be time consuming, unpredictable, and painfully frustrating. This was especially true before PERM was implemented when traditional LC, RIR, and BEC dominated the world.

Who is Eligible for National Interest Waiver?

To qualify for NIW, candidates must be able to prove that:

  1. They are seeking employment in an area of substantial intrinsic merit;
  2. their area of employment will benefit the country's interest on a national scale; and
  3. it would adversely affect aforementioned national interest, if labor certification were required; and
  4. they qualify for EB-2 classification, meaning that they "hold advanced degrees or their equivalent," or "have exceptional ability in the sciences, arts, or business and will substantially benefit the national economy, cultural, or educational interests or welfare of the United States;"

The most difficult requirement in NIW is the No. 3 above, which requires evidence that the national benefit from the petitioner's work actually outweighs the U.S.'s interest in protecting its own labor market.

Many professions have intrinsic merit, such as those related to medical research, economy, environment and education. Defining "national interest" can be tricky sometimes, because not many people are truly working on a project that is on a national scale. However, the correlation between a particular occupation and national goal does't have to be direct. In fact, many areas of employment, even if performed locally, do have an impact on national interest. For people who have been in school for so long, have always been around people in the same field, and have worked on cutting-edge technologies in the labs, it is easy to consider their own work (especially in industries) rather ordinary. But if you look at the overall picture, they truly belong to the elite group who are making significant contributions to the country's development.

What is a Professional with Advanced Degree?

An advanced degree is a post-graduate degree beyond the baccalaureate, such as Doctor of Philosophy (Ph.D.), Doctor of Medicine (MD), Master of Science (M.S.), Master of Arts (M.A.), Master of Engineering (M.E.), and Master of Business Administration (MBA).

Foreign advanced degrees are valid if they can be proved that they are comparable and equivalent to those earned in the U.S. This is not a difficult task as USCIS, with the help from other government agencies, understand most countries' educational structure and credentials very well.

A bachelor's degree plus 5 years of progressive working experience in the specialty may be considered equivalent to an advanced degree.

Note that in general EB2 definition, holding an advanced degree alone is not enough, the job itself must require one.

What is Considered Exceptional Ability

To prove that you are a person with exceptional ability in the sciences, arts, or business, you must provide sufficient documentation of three of the following:

  1. Official academic records - degree, diploma, or similar certificate - from a college, university or school relating to the area of exceptional ability (this doesn't have to be an advanced degree or program);
  2. Verification letters showing at least 10 years of full-time experience in the specialty occupation;
  3. A license or certificate for a particular profession;
  4. Sufficient salary or other remuneration that demonstrates exceptional ability;
  5. Membership in professional associations;
  6. Award or recognition for achievements and significant contributions, by peers, government entities, professional or business organizations;
  7. Other comparable evidence if the above do not apply to a particular occupation.

If you already qualify for EB2 because you hold an advanced degree, you don't need to prove exceptional ability. Vice versa.

How Many Letters of Recommendation Do I Need for NIW?

There is no specific number as to how many recommendation letters you must submit in your NIW case. However, 5 - 10 are typical. Also the quality of letters is more important than the sheer number. If you have a letter from a well-known leading expert in your field, it carries more weight than several letters from your former co-workers, for example.

How Many Publications Do I Need for NIW?

The more, the better, of course. However, having your work published in professional journals and conferences is one factor that can demonstrate your achievements and ability, but not the only factor. If you have published in heavy-weight journals before, it would definitely strengthen your case.

Are NIW Cases Subject to Visa Retrogression?

Yes. NIW, being in the EB2 category, is subject to the same visa backlogs as regular EB2 applications. However, since NIW cases may save one year or more in the labor certification process, they are usually ahead of other EB2 cases started around the same time.

Are J-1 Scholars Eligible for NIW?

Yes, as long as they are otherwise qualified. However, a national interest waiver does not replace a J-1 home country residency waiver. If you are in J-1 status and have already received NIW approval, you still must obtain the J1 waiver or fulfill the 2-year residency requirement before you can adjust your status.

Are F-1 Students Eligible for NIW?

Yes, since a job offer is not required for NIW cases. However, since filing NIW clearly establishes immigrant intent, it might cause trouble when the student later needs an F-1 visa to re-enter the U.S., especially if the NIW case is denied. F-1 visa doesn't come with the "dual intent" provision as H-1B, but USCIS and U.S. consulates don't enforce the rule consistently. So it may be Ok, but needs extra caution.

Because of the apparent advantages of national interest waiver, USCIS tends to scrutinize them carefully. However, if one has a strong case, NIW is still a very attractive option.

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