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What is a National Interest Waiver?

Some professionals with Advanced Degrees and persons of Exceptional Ability are not required to have a Labor Certification granted to them before they can apply for permanent residence if they are granted a National Interest Waiver (NIW). In fact, persons eligible for the NIW are also exempt from the job offer requirement and can self-petition and sponsor their own permanent residence.

What Is the “National Interest”?

The legal definition of what is considered the “national interest” is not defined by law.  In 1998 an immigration agency decision called Matter of New York State Department of Transportation (NYSDOT) was issued which provided a set of factors to be considered. And again in 2016, the immigration agency USCIS issued a new decision called Matter of Dhanasar adopted a new analytical framework or test for evaluating an NIW. The court eliminated the framework from NYSDOT.

NIW Three-Part Test

Today, the USCIS will grant a NIW to a foreign national who is eligible for an EB-2 as either an Advanced Degree professional or a person of Exceptional Ability if he or she can demonstrate each of the requirements under a new 3-part test.

1. THE FOREIGN NATIONAL’S PROPOSED ENDEAVOR HAS BOTH SUBSTANTIAL MERIT AND NATIONAL IMPORTANCE.

This first prong focuses on the specific endeavor that the foreign national proposes to undertake in the United States. The endeavor may be in a variety of fields, such as business, entrepreneurialism, science, technology, culture, health, or education. Proof of the potential to create a significant economic impact can be very helpful, but it is not required. However, the Dhanasar case also has opened the door for possible measuring of success by a comprehensive business plan and economic impact study.

Recommended types of evidence include:

  • Articles or other published media discussing the importance of the planned endeavor.
  • Letters from recognized experts in the field of endeavor attesting to the foreign national’s area of expertise.
  • Published articles or media reports describing the field of expertise.
  • Testimonials by experts and from past/present employers who can attest to the national importance of the foreign national’s work.

Letters from experts in the field attesting to the foreign national’s work and its national importance.

2. THE FOREIGN NATIONAL IS WELL POSITIONED TO ADVANCE THE PROPOSED ENDEAVOR

A new second requirement focuses on whether the foreign is well positioned to advance the proposed endeavor. Examples of the factors include, but are not limited to:

  • 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.
  • The interest of potential customers, users, investors, or other relevant entities or individuals.
  • Copies of published articles that cite or otherwise recognize achievements
  • Copies of grants or other funding received.
  • Documents showing how your work is being implemented by others, for example:
    • Contracts with companies using your or your company’s products.
    • Documents showing licensed technology that you and/or your company invented or co-invented, and how that licensed technology is being used by others.
    • Patents or licenses awarded to you and/or your company with documents showing how they are being used and why they are significant to your field.

While applicants for a NIW are not required to demonstrate that their endeavors are more likely than not to ultimately succeed, they will need to show substantial proof that they are well positioned to advance the proposed endeavor.

3. THAT, ON BALANCE, IT WOULD BE BENEFICIAL TO THE UNITED STATES TO WAIVE THE REQUIREMENTS OF A JOB OFFER AND THUS OF A LABOR CERTIFICATION

The purpose of the Labor Certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. So, when deciding whether to grant a waiver, USCIS looks at all of the evidence to see whether the national benefits considered are more important than the national interests at risk in the Labor Certification process. Some of the documentation that is important to demonstrate that waiving the Labor Certification requirement would benefit the national interests of the United States includes:

  • Whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either to secure a job offer or to obtain a labor certification. For example, the labor certification process may prevent a U.S. employer from sponsoring a foreign national with unique knowledge or skills that cannot easily be articulated in a labor certification.
  • It may be impractical for an entrepreneur or self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer.
  • Even if other qualified U.S. workers are available, can it be shown that the United States would still benefit from the foreign national’s contributions.
  • Whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

Making Your Choice

Considering whether to seek a labor certification or a national interest waiver must be carefully evaluated. Not all professionals fall within this exemption, and the better option may be testing the labor market. At HarrisLaw, we will closely work with you, the persons who have witnessed your accomplishments, and develop your case to show how you field of expertise is in the national interest, and how it will prospectively benefit the United States.  We have extensive experience in the filing of National Interest Waivers for persons in the field of business, entertainment, financial banking services, and other unique areas. Please contact us for an initial no obligation evaluation of your case.

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