National Interest
Waiver (NIW)

NIW Overview

A National Interest Waiver (NIW) petition falls into the employment-based immigration second preference category (EB-2). Normally, to file an EB-2 petition, a U.S. job offer and labor certification (PERM) approval are prerequisites. However, a National Interest Waiver petition asks that these requirements be waived for the sake of "national interest."

This makes the NIW an attractive option for scholars, researchers, and Ph.D. students, as well as entrepreneurs or other individuals who tend to be self-employed. Since the PERM labor certification requirement is waived in an NIW petition, the underlying permanent job offer is waived too. Therefore, an individual without a prospective employer may file an NIW petition on their own behalf as a self-petitioner.

The Three-Prong Test

In order to file an NIW petition, you must qualify as an "Advanced Degree Professional" or as an "Alien of Exceptional Ability" in the sciences, arts, or business. You must also satisfy all three elements of the NIW framework:

The proposed endeavor may be in any field, including business, entrepreneurship, science, technology, culture, health, or education. Ultimately, anyone who seeks an exemption under an NIW must demonstrate that the benefit their work would provide to the nation is so great as to outweigh the nation's interest inherent in completion of the labor certification process.

Example: A Strong NIW Candidate

Mr. Rankin is a foreign graduate research assistant with many years of experience in maritime and hydrodynamic engineering. His future work aims at improving the structural safety and efficiency of ships and reducing the costs associated with ship classification and inspection. He has been offered a two-year research position by a U.S. university to continue his research.

Mr. Rankin likely qualifies as an NIW candidate since he holds an advanced degree, his proposed work has both substantial merit and national importance, and his education and research experience make him well positioned to advance the endeavor. On balance, it appears that it would be beneficial to the United States to waive the requirement of a labor certification.

Advanced Degree Professional

The term "Advanced Degree Professional" means that the beneficiary either has a U.S. advanced degree (M.A., M.S., M.E., M.D., or Ph.D.) or its foreign equivalent. A U.S. bachelor's degree or its foreign equivalent plus five years of progressive, post-degree work experience may also satisfy the qualification requirement of an "advanced degree."

Alien of Exceptional Ability

The term "Alien of Exceptional Ability" describes a person who possesses "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." To qualify under this category, the NIW petition must be accompanied by at least three of the following six types of evidence:

• An official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability.
• Letters from current or former employers showing at least ten years of full-time experience in the relevant occupation.
• A license to practice the profession or certification for a particular profession or occupation.
• Evidence that you have commanded a salary or other remuneration for services that demonstrates exceptional ability.
• Evidence of membership in professional associations.
• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Prong 1: Substantial Merit and National Importance

Substantial merit and national importance can be demonstrated by showing potential significant economic impact, or by demonstrating that your proposed work has the potential to advance research, science and technology, general human knowledge, national security, public health and welfare, or cultural or artistic enrichment — whether or not it will translate into economic benefits.

USCIS has emphasized that the focus in determining national importance is on the specific endeavor that the foreign national proposes to undertake. A general shortage of qualified workers in your profession is not, by itself, sufficient to establish national importance.

Prong 2: Well Positioned to Advance the Endeavor

You can meet this prong by providing evidence of your education, skills, knowledge, and record of success in similar or related efforts, along with a detailed business plan or outline for future activities. Evidence of interest or support from potential customers, investors, or other relevant parties will also be considered.

You do not have to show that your proposed endeavor is more likely than not to succeed, but it must be feasible and plausible.

Prong 3: Beneficial to Waive the Job Offer and Labor Certification

The purpose of the job offer and PERM labor certification requirement is to protect the job opportunities, wages, and working conditions of U.S. workers and to ensure they are not adversely affected by the admission of foreign workers. You can meet this prong by submitting evidence relating to one or more of the following reasons:

• The impracticality of a lengthy labor certification process because your skills and expertise are so unique that they are not easily articulated in a labor certification application.
• The impracticality of securing a job offer because you are a self-employed entrepreneur or inventor.
• The national interest in your prospective contributions is sufficiently urgent, relating to U.S. competitiveness in science or technology, national security, public health or safety, etc.
• Your proposed endeavor has the potential to create significant economic impact and/or create jobs for U.S. workers.

A successful NIW petition must establish that the foreign national more likely than not satisfies all three elements. This is known as the "preponderance of the evidence" standard. The burden of proof rests solely on the petitioner and their attorney.

Core Documentation Checklist

Below is a general list of documentation that must be submitted in support of an NIW petition. Upon case initiation, we will provide you with a comprehensive, detailed checklist tailored to your specific situation.

Letters of Recommendation

Letters of recommendation are an essential part of every NIW petition. These are letters written by experts in your field or by otherwise authoritative persons in an allied or supported field. The letters discuss your abilities and accomplishments, as well as the importance of your work to the national interest.

Letters of recommendation should demonstrate all three elements of the NIW framework:

• Your proposed work has both substantial merit and national importance, either through its economic impact, the furtherance of research, technology, and human knowledge, or by enhancing national security, societal welfare, or cultural or artistic enrichment.
• You possess unique knowledge, abilities, or experience which set you apart from your professional peers and you will utilize your unique talents in an activity significantly benefiting your field, making you well positioned to advance the proposed endeavor.
• On balance, it would be beneficial to the United States to waive the requirements of a job offer and labor certification — for example, by providing evidence of job creation potential, explaining how the labor certification process cannot appropriately capture your unique skills, showing that self-employment does not adversely affect U.S. workers, documenting urgency related to public health or safety, or outlining the impracticality of labor certification under the circumstances.

Who Should Write Your Letters?

Letters of recommendation can be obtained from various sources related to your field, such as top-level representatives of companies making use of your work or intending to do so, current and former employers, outside investors, relevant government entities, or independent experts. Letters should describe your past achievements in detail and provide specific examples of how you have made significant contributions to your field.

How Many Letters Do You Need?

There is no required minimum number of recommendation letters set forth by USCIS, but an NIW petition should include approximately five to six letters. The credentials of the individuals who write letters on your behalf will be reviewed by USCIS to determine whether they are qualified to make such evaluations.

Why the NIW Works for Entrepreneurs

The current analytical framework for NIW cases was established in Matter of Dhanasar, a 2016 decision from the USCIS Administrative Appeals Office (AAO). This decision made the NIW a more viable choice for entrepreneurs who often do not fit neatly into existing visa and green card categories.

“[A]n endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, may well be understood to have national importance.”

— Matter of Dhanasar, AAO (2016)

Key Advantages for Entrepreneurs

• Dhanasar allows using the person's degrees and experience. This benefits highly educated entrepreneurs, as well as those who already held a key role in one or more successful start-ups. Evidence of admission into an incubator or accelerator may also be considered favorably.
• Investments or binding commitments to invest by angel investors, VCs, or other established organizations can serve as evidence of the endeavor's substantial merit and as an indicator that the entrepreneur is well positioned to advance the endeavor.
• The benefit to the U.S. interest can be local, such as helping to create jobs in a depressed area or creating a specialized local product. Entrepreneurs can argue the impact of their work on the economy starting regionally, then adding national supply chain implications if applicable.
• The entrepreneurial venture does not need to succeed. Dhanasar acknowledges that many innovations and entrepreneurial endeavors may ultimately fail despite an intelligent plan and competent execution. The entrepreneur just needs to be "well positioned to advance the proposed endeavor," which stresses the importance of a high-quality business plan.
• The PERM labor certification process can be especially difficult for entrepreneurs since it requires a full-time job offer at a competitive salary and evidence that the company can pay that salary. An NIW bypasses this requirement entirely.

“[M]any innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed.”

— Matter of Dhanasar, AAO (2016)

How Long Does the NIW Process Take?

An NIW petition generally takes anywhere from 10 to 15 months for review from the time it is filed via regular processing. For an additional government filing fee of $2,500, you can request Premium Processing, which means that USCIS will take action on your NIW petition within 45 days.

Please note that these time frames do not include the green card application and adjudication process. Once the NIW is approved, you must still undergo the process of applying for permanent resident status.

Request for Additional Evidence (RFE)

Sometimes USCIS is not convinced that the foreign national seeking an NIW has met the burden of proof. In such cases, USCIS will typically issue a "Request for Additional Evidence" (RFE) seeking certain forms of evidence that USCIS finds lacking in the original petition.

After NIW Approval

An approved NIW does not automatically result in a green card. To become a permanent resident, an additional step is required: you must either file an I-485 Adjustment of Status application with USCIS or apply for an immigrant visa at a U.S. Consulate abroad. Whether you can do this immediately upon approval depends on whether an immigrant visa is available for you.

Some individuals may be able to save time by submitting their I-485 Adjustment of Status application concurrently with the NIW petition.

Priority Date

Your priority date is the date on which USCIS receives your NIW petition. This date determines your place in line for an immigrant visa number.

Employment After Approval

After your NIW is approved, you are not required to remain with your current employer. However, you must continue to work in your field and perform the same type of work for which your NIW was approved. If you venture into another area, USCIS may deny your subsequent green card application. It is important that you continue working in your field at least until you obtain your green card and become a permanent resident.

Eligibility Questions

Can a Ph.D. student apply for an NIW?

Yes. A Ph.D. student may qualify for an NIW petition. For example, if you hold an M.S. degree but have not yet completed your Ph.D., the M.S. degree meets the minimum requirements of an advanced degree professional. However, you must still meet the NIW three-prong test.

Will a foreign advanced degree be accepted?

Yes. A foreign advanced degree meets the NIW's advanced degree minimum requirements. But to qualify for an NIW, you must also meet the three-prong test.

How many publications are required?

There is no minimum publication requirement. USCIS decides each petition on a case-by-case basis. There is also no specific requirement that you need to have published work in order to apply for or obtain approval of an NIW petition.

Do artists or musicians qualify?

Yes. Artists and musicians may apply for an NIW. There are many ways to demonstrate your qualification and meet the three prongs for national interest beyond traditional academic or scientific achievements.

Do I need awards or professional memberships?

No. There is no specific requirement that you need to have received any awards or be a member of any professional association or society. If a professional association is relatively easy to join and admission is not based on merit, membership may not be a relevant factor in your NIW case.

Do I need to live in the U.S. to apply?

No. A foreign national may reside either within the U.S. or in a foreign country when applying for an NIW. However, your NIW claim will be more difficult to establish if you are living outside the U.S.

NIW and Other Immigration Categories

Can I file both an EB-1 and an NIW?

Yes. You are not limited to submitting only one immigrant petition. You may petition under more than one category simultaneously, whether employment- or family-based. Filing under multiple categories increases your odds of getting an approval, since it is impossible to predict in advance whether USCIS will approve a case. The two petitions are unrelated, and one will not negatively affect the other.

Can I file an NIW if I have a PERM labor certification pending?

Yes. A labor certification application is processed by the U.S. Department of Labor, whereas NIW petitions are adjudicated by USCIS. If your labor certification is ultimately denied, you still have a chance of getting an NIW approved. Moreover, with a labor certification you must file your I-140 under the sponsoring employer and would be required to work for that employer for some time after approval. With an NIW, you are not bound to any particular employer.

Can I file an NIW if my labor certification was denied?

Yes, assuming you otherwise qualify. The standards for NIWs and labor certifications are very different. A labor certification is based on showing a lack of available U.S. workers with minimum qualifications for a particular job. By contrast, an NIW is based on the foreign national being able to contribute to a greater degree than U.S. workers with minimum qualifications. There could be many qualified U.S. workers available for a job, but if you are significantly better at that particular work, a labor certification would likely be denied while an NIW would be more likely to be approved.

Are there other employment-based petitions that don't require labor certification?

Yes. If you qualify for an employment-based first preference petition (EB-1), you do not need a labor certification. Within the first preference category, if you qualify as an "Alien of Extraordinary Ability," you also do not need a job offer.

J-1 Visa Holders

Can I apply for an NIW while in J-1 status?

Yes. However, if you are subject to the two-year home country residency requirement, you need to obtain either a J-1 waiver or satisfy its requirements before you may become a permanent resident.

Does NIW approval waive the J-1 two-year requirement?

No. The J-1 waiver and National Interest Waiver are two entirely different things. A J-1 waiver is an application to waive the two-year home country residency requirement. A National Interest Waiver is an immigration petition and waiver of the job offer and labor certification requirement. Even if your NIW is approved, you are still subject to the J-1 two-year requirement and must obtain a J-1 waiver or satisfy its requirements before applying for permanent resident status.

Chances of Approval

Your chance of success for an NIW approval is not determined solely by your resume and background. Strong letters of recommendation from various sources play an important role in supporting an NIW claim. Your chance of success cannot be measured without analyzing all the components of an NIW petition. There is nothing specific that guarantees a successful NIW petition — the petitioner must provide sufficient evidence to show that the proposed endeavor meets the three-prong test.