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National Interest Waiver (NIW) Green Card

Statue of Liberty Replica Tokyo 147011351 National Interest Waiver (NIW) Green CardThe National Interest Waiver (NIW) green card may be an option for members of the professions holding an advanced degree or its equivalent, or individuals with Exceptional Ability in the Sciences, Arts or Business who can show that their work is in the national interest.

On December 27, 2016, the Administrative Appeals Office (AAO) of USCIS set forth a new framework for assessment of the merits of a National Interest Waiver (NIW) petition.

What is the National Interest Waiver (NIW)?

The National Interest Waiver (NIW) is so-named because it allows qualified candidates to waive the usual requirements for individuals seeking a green card through US employment, namely, a PERM labor certification and a job offer from a US employer. National Interest Waiver (NIW) candidates must show that, if granted permanent US residence, they will “substantially and prospectively” benefit the national economy, cultural or educational interest or welfare of the US. It is not enough to show that the candidate’s skills that are in shortage in the US or generally, or that a candidate’s skills are in high demand (shortage would be a case for PERM Labor Certification rather than National Interest Waiver (NIW)).

In addition, at the final stage of the green card process, the candidate is likely to be asked to show that s/he will continue to work in the field of expertise presented in the petition.

National Interest Waiver (NIW) Standards

Below we discuss the current standard a candidate must satisfy to succeed in a National Interest Waiver (NIW) petition, as well as the immediate past standard (set forth in Matter of NYSDOT in 1998), which the Administrative Appeals Office of USCIS vacated with their decision setting out the new NIW standard, Matter of Dhanasar.

New Current National Interest Waiver (NIW) Framework (as of December 2016): Matter of Dhanasar

The Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Service (USCIS) recently issued a precedent decision, Matter of Dhanasar (AAO 2016), vacating the previous standard for National Interest Waiver (NIW) petitions in Matter of NYS Department of Transportation (NYSDOT)(1998). Since 1998, the NYSDOT standard resulted in inconsistent adjudications and confusion. So, with Matter of Dhanasar, the AAO has attempted to provide a framework that will enable National Interest Waiver (NIW) adjudication with greater consistency, clarity and flexibility.

Matter of Dhanasar sets out the following new framework for adjudication of National Interest Waiver (NIW) petitions:

  1. The candidate’s proposed area of endeavor has both substantial merit and national importance.
  2. The candidate is well-positioned to advance the proposed endeavor.
  3. On balance, granting a National Interest Waiver (NIW) of a job offer and/or labor certification would benefit the US.

1. Substantial Merit and National Importance: Area of Proposed Endeavor

The first prong of the new framework focuses on the candidate’s proposed area of endeavor. An NIW candidate may demonstrate the merit of such area of endeavor in a range of fields, including business, entrepreneurship, science, technology, culture, health or education.

Evidence that the endeavor has the potential to create a significant economic impact may be favorable to a petition, but is not required, since a candidate may establish the area of endeavor’s merit without immediate or quantifiable economic impact. For example, endeavors related to research, pure science or the furtherance of human knowledge may qualify whether or not the potential achievements in those fields are likely to provide economic benefit to the US.

A determination of whether an area of endeavor has national importance requires an evaluation of its potential prospective impact. An area of endeavor may have national importance because is has national or global implications within a particular field, such as implications of improved manufacturing processes or medical advances. The AAO states, however, that USCIS should not evaluate prospective impact solely in geographical terms. Rather, they should look at broader implications. The AAO specifically states that endeavors that focus solely on one geographic area may by considered to have national importance. For example, an endeavor that has significant potential to employ US workers or has other substantial positive impact, particularly in an economically depressed area, would qualify.

2. Beneficiary Must be Well Positioned to Advance the Proposed Endeavor

With the second prong of the new NIW framework, AAO shifts the focus from the proposed endeavor to the foreign national. To determine whether s/he is well positioned to advance the proposed endeavor, USCIS should consider factors including, but not limited to:

  1. The candidate’s education, skills, knowledge and record of success in related or similar endeavors.
  2. The presence of a model or plan for future activities.
  3. Any progress the candidate has made towards achieving the proposed endeavor.
  4. The interest of potential customers, users, investors or other relevant entities or individuals.

Petitioners do not have to demonstrate that their endeavors are more likely than not to ultimately succeed. However, they must show by a preponderance of the evidence that they are well positioned to advance the proposed endeavor.

3. Beneficial to the United States

The third prong of the new National Interest Waiver (NIW) framework requires 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. In making this determination, USCIS may consider factors including:

  • Whether, in light of the nature of the foreign nationa’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification.
  • Whether, even assuming that other qualified US workers are available, the US would still benefit from the foreign national’s contributions. And,
  • Whether the national intersest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

The AAO emphasizes that each of the factors considered must, taken as a whole, indicate that on balance, it would be in the US’s benefit to waive the requirements of a job offer and thus of a labor certification. They also note that this third prong does not require a showing of harm to the national interest or a comparison against US workers in the petitioner’s field.

In addition to the above, a successful National Interest Waiver (NIW) green card candidate must either have an advanced degree, or must demonstrate exceptional ability (as defined in the regulations) in the field of endeavor to qualify for  the EB2 category. (See below for definitions.)

Past National Interest Waiver (NIW) Standard: NYSDOT

The immediately previous standard (prior to December 2016) for the National Interest Waiver (NIW) was a 1998 court decision, New York State Department of Transportation (NYSDOT), which substantially changed the legal standard at that time and raised scrutiny of National Interest Waiver (NIW) green card petitions.

According to NYSDOT, a National Interest Waiver (NIW) candidate had to meet the following three tests:

  1. Prospective employment must be in an area of “substantial intrinsic merit.” Generally, USCIS appeared to accept most established fields as a field of substantial intrinsic merit. However, National Interest Waiver (NIW) eligibility cannot be established solely by showing that a beneficiary’s field of endeavor has intrinsic merit.
  2. The proposed benefit must be national in scope, i.e., the candidate’s work had to have a national rather than a local or limited impact. Those whose work has limited impact, i.e., primarily on their own employer, or on a limited climate base or locality, had great difficulty overcoming this National Interest Waiver (NIW) factor. And,
  3. Finally, a candidate had to show that “the national interest would be adversely affected if a labor certification were required.” That is, candidates had to demonstrate that it would be contrary to the national interest of the US to potentially deprive a prospective employer of the candidate’s services by making the proposed position available to US workers. By extension, a National Interest Waiver (NIW) candidate who could demonstrate that s/he is at the very top of his or her field and/or that his/her work has had a significant impact on that field would  presumably have met this criterion.

Definitions for Purposes of National Interest Waiver (NIW)

Professionals Holding an Advanced Degree (EB2)

For US immigration purposes, “advanced degree” is postgraduate study beyond a bachelor’s degree (at minimum, a master’s degree or its US equivalent). The “equivalent” of a US Masters degree is the foreign equivalent of a Bachelor’s degree, followed by at least 5 years of progressive experience in the specialty. No amount of experience may be substituted for the bachelor’s degree in establishing eligibility in this category. In addition, if beneficiary’s specialty customarily requires a doctoral degree, the candidate should possess such a degree.

Exceptional Ability (EB2) in the Sciences, Arts or Business

In US immigration, “exceptional ability” is “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business,” and is denoted by the following regulatory factors. If an applicant meets at least 3 of these factors, s/he will qualify under this standard:

  1. Degree, diploma or certificate of similar award from college, university, school or other institution of learning relating to the area of exceptional ability.
  2. 10 or more years of full-time experience in the candidate’s proposed occupation, demonstrated by letter(s) from current or former employer(s).
  3. License to practice the profession or certification for a particular profession or occupation.
  4. Salary or remuneration for services that demonstrates exceptional ability.
  5. Membership in professional associations. Or,
  6. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If the above criteria do not readily apply to the beneficiary’s occupation, the candidate may submit comparable evidence to establish eligibility.

Individuals with an advanced degree need not satisfy the Exceptional Ability standard.

Please note that we will accept a National Interest Waiver (NIW) green card case only if we feel it has a high chance of success after examining the prospective client’s credentials and subjecting them to an analysis of the regulations and the latest trends in adjudication of this case type.