National Interest Waiver (NIW) Green Card

 The National Interest Waiver (NIW) green card may be an option for members of the professions holding an advanced degree or its equivalent, or for 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 USCIS Administrative Appeals Office (AAO) established a new framework for National Interest Waiver (NIW) petitions.

What is a National Interest Waiver (NIW)?

The National Interest Waiver (NIW) allows qualified candidates to waive the usual requirements for individuals seeking a green card through US employment. (The usual requirements are a PERM labor certification and a job offer from a US employer.) NIW candidates must show that their work will “substantially and prospectively” benefit the economic, cultural or educational interests or overall welfare of the US. A demonstration of shortage is not enough to qualify. (Shortage would be a case for PERM Labor Certification rather than NIW). Nor is a showing that certain skills are in high demand.

At the final stage of the green card process, the candidate should be prepared to show intent to continue working in same field presented in the petition.

National Interest Waiver (NIW) Standards

Below we discuss the current standards for a National Interest Waiver (NIW) petition. We also discuss the immediate past standard (set forth in Matter of NYSDOT in 1998). In 2016, the USCIS Administrative Appeals Office vacated NYSDOT and delineated a new NIW standard in Matter of Dhanasar.

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

The Administrative Appeals Office (AAO) recently issued a precedent decision, Matter of Dhanasar (AAO 2016). Dhanasar vacated the previous NIW standard from 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 to enable National Interest Waiver (NIW) adjudication with greater consistency, clarity and flexibility.

The new Dhanasar NIW framework consists of the following: 

1. The 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 an NIW candidate’s proposed area of endeavor. A range of fields qualify, including business, entrepreneurship, science, technology, culture, health, education and others.

Evidence that the area of expertise has the potential to create a significant economic impact may be favorable in an NIW. But it is not a requirement. An NIW may establish the area of endeavor’s merit without immediate or quantifiable economic impact. For example, fields 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.

Whether an area of endeavor has national importance depends on its potential prospective impact. It may have national importance based on national or global implications within a particular field. This may include potentially 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 focused solely on one geographic area may 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 need not show that their work is more likely than not to ultimately succeed. But 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, the US would benefit from a waiver of a job offer and a PERM labor certification. In making this determination, USCIS may consider factors including:

• In light of the nature of the candidate’s qualifications or proposed endeavor, whether it would be impractical to secure a job offer or obtain a labor certification.
• Assuming that other qualified US workers are available, whether the US would still benefit from the foreign national’s contributions. And,
• Whether the national interest in the candidate’s contributions is sufficiently urgent to warrant forgoing the labor certification process.

Each factor 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 labor certification. The third prong does not require a showing of harm to the national interest or a comparison against US workers in the candidate’s field.

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

Past National Interest Waiver (NIW) Standard: NYSDOT

New York State Department of Transportation (NYSDOT)(1998) contained the immediately previous NIW standard. That case substantially changed the existing NIW standard. It also significantly raised scrutiny of NIW green card petitions.

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

1. The field of prospective employment must have “substantial intrinsic merit.” USCIS appeared to accept most established fields as having substantial intrinsic merit. However, this alone was not enough to qualify for an NIW.
2. The proposed benefit must be national in scope. The candidate’s work must have national rather than local or limited impact. Work that had limited impact, i.e., primarily on one employer, or on a limited client base or locality, had difficulty overcoming this NIW factor. And,
3. Finally, a candidate had to show that a labor certification requirement would have an adverse affect on the national interest. That is, depriving a prospective employer of the candidate’s services by opening the proposed position to US workers would have an adverse impact on the national interest. By extension, candidates at the very top of their field and/or work with a significant impact on the field would presumably meet this criterion.

Definitions for Purposes of National Interest Waiver (NIW)

Professionals Holding an Advanced Degree (EB2)

“Advanced degree” is postgraduate study beyond a bachelor’s degree. This means, 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. The regulations do not allow substitution of experience for a bachelor’s degree. In addition, the candidate should have a doctoral degree if the field customarily requires it.

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

“Exceptional ability” is “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business.” Candidates must meet at least 3 of the factors below:

1. Degree, diploma or certificate or 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 candidate’s proposed occupation. The NIW requires letter(s) from current or former employer(s) to demonstrate experience.
3. License to practice the profession or certification for a 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 occupation, the candidate may submit comparable evidence to establish eligibility.

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