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National Interest Waiver (NIW)

NIW NIW Requirements Legal Fees of NIW Processing of NIW Benefits of NIW
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Introduction

A petition for an employment-based immigrant visa under the second preference (“EB-2”), unlike the first preference category for individuals with extraordinary ability (“EB-1A”), generally requires a specific, permanent job offer and a corresponding approved labor certification. As a result, not only does the potential beneficiary have to have a firm job offer, but they must rely on that particular employer to petition on their behalf. In addition, the labor certification process can be a very time consuming and costly undertaking for potential employers. This is one reason why we see many employers be hesitant to petition on behalf of beneficiaries for this particular preference category. However, under the “National Interest Waiver” (NIW) provision for EB-2, an individual may seek a waiver of the otherwise required offer of employment –and thus corresponding labor certification- by establishing that his/her admission to permanent residency would be in the so-called "national interest". As a result, this means that potential beneficiaries can petition on their own behalf. However, because of the heightened evidentiary standard a petitioner must meet, the NIW requires more than a regular EB-2 petition. The procedure is to file the Form I-140 together with corresponding evidence to establish that the foreign person's admission to the United States for permanent residency would be in the national interest. Given our vast experience with the NIW petition in particular, North America Immigration Law Group has developed winning strategies for this type of petition, which enables us to offer our “Approval or Refund” service to many of the National Interest Waiver cases we take.

Our Success With National Interest Waiver (NIW) Petitions

We are pleased to announce that North America Immigration Law Group has so far received over 5,000 EB-1A, EB-1B and EB-2 NIW approval notices with an approval rate of 98.22% for cases using our "Approval or Refund®" (money back guarantee) service and 96.95% for all types of services we offer for these categories combined. For NIW cases in particular, the approval rate for the year 2014 and 2015 was 99.18% for cases using our "Approval or Refund®" (money back guarantee) service with an overall approval rate for all types of NIW cases of 98.47%. This success rate helps to illustrate just how well we understand the NIW process and how to apply it to our client’s particular situations.

Still Need to be Qualified for EB-2 Category

North America Immigration Law Group always reminds our clients not to forget that a successful national interest argument does not establish eligibility for second preference classification. The National Interest Waiver (NIW) waives a labor certification and the necessity of having an offer of employment, but it does not waive the basic "entry" requirements for second preference classification. Therefore only after the second preference threshold is satisfied can a National Interest Waiver (NIW) be considered.

Please click here (EB-2 Qualifications ... ) to see the requirements of EB-2, summarized by North America Immigration Law Group.

What is "National Interest" ?

The Immigration Act of 1990 states that the standards for a national interest waiver under the EB-2 category are "significantly above that necessary to prove prospective national benefit".

Other than that, the law does not indicate specifically what counts for National Interest. USCIS believes it appropriate to leave the application of this test as flexible as possible. The burden of proof will rest with the foreign national to establish that exemption from or waiver of the job offer will be in the national interest. Each case will be judged on its own merits.

We have found that the range of cases and decisions indicates that the government requires a fairly direct benefit to the community-at-large before it will agree that a job is in the national interest. Factors that have been considered in successful cases include:

  1. The foreign person's admission will improve the U.S. economy.
  2. The foreign person's admission will improve wages and working conditions of U.S. workers.
  3. The foreign person's admission will provide more affordable housing for young, aged, or poor U.S. residents.
  4. The foreign person's admission will improve the U.S. environment and lead to more productive use of the national resources.
  5. The foreign person's admission is requested by an interested U.S. government agency.

Applying these criteria, or variations involving other factors such as cultural enrichment, North America Immigration Law Group found that the USCIS Service Centers had ruled national interest in an array of occupations, including: corporate vice-president (in a paper-recycling company); computer programmer (of computer programs that locate disposal sites for radioactive waste); anthropology professor (specializing in the cocaine-producing region of Peru, knowledge of which is necessary to U.S. drug interdiction efforts); and mall general manager (of a new shopping mall that local government officials believed vital to local economic well-being).

NYSDOT Decision

In 1998, INS designated its first precedent decision discussing the standards governing National Interest Waiver (NIW) requests in In re New York State Department of Transportation (NYSDOT). The decision established stricter standards for obtaining NIWs than those applicable in the past. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for a NIW.

  1. Area of Substantial Intrinsic Merit
  2. Proposed Benefit of National Scope
  3. National Interest of the United States

How to meet the requirements for National Interest Waiver

A. Substantial Intrinsic Merit

The first prong is arguably the easiest to satisfy of the three prongs introduced above. In order to demonstrate Substantial Intrinsic Merit, it must be shown that the field of endeavor is related to an important national goal and that the work is beneficial to the United States. Examples of such "national goals" could include improving the health, safety, the economy, the environment, education, or the arts. It is important to note that substantial intrinsic merit is not limited to only fields of scientific research, but can be demonstrated for almost any field, including but not limited to the arts, social sciences, and business.

Evidence: In order to support the argument that your work is of substantial intrinsic merit, one must submit evidentiary documents explaining in simple terms why your work is important and what are the practical applications or benefits of that work to the U.S. Letters of recommendation from experts in the field explaining your research and its implications and significance to the United States are suitable evidence in addition to any other publications or reports detailing the significance of your field and the benefits of such work to the United States.

Examples: These are example approvals of our firm in 2013-2015

B. National in Scope

The second prong requires that your work be National in Scope. That is, the benefits of your work cannot be limited to one particular geographical region. This is relatively easy to demonstrate when one considers trying to relate their work to a particular national goal. For instance, a physician working in one hospital may appear to only be benefiting the geographical region that the particular hospital serves. However, the physician can demonstrate that they are benefiting the nation as a whole through the dissemination of their research publications, or through the development of new procedures or techniques that are implemented in hospitals outside of their geographic region. It is generally easy to demonstrate that most types of scientific research have benefits that are national in scope, as scientific advancement in a particular area can easily be tied to a specific national goal such as healthcare or safety. However, we are also experienced and have had much success in demonstrating the national benefits of those involved in more unusual or unique fields, including but not limited to musicians, artists, economists, and web-developers.

Evidence: In addition to explaining how your work benefits the nation as a whole or is tied to a national goal, other forms of evidence can provide more support for these arguments.

A. Government funding: any instances of your work being funded by the U.S. government can easily substantiate the claim that your work has benefits to the U.S. as a whole

B. Citations: not only can citations show the impact your work has had on the field, they can also demonstrate that your work is being implemented and utilized by researchers around the nation, and therefore benefiting the nation as a whole

C. Letters of recommendation: letters of recommendation can provide statements explaining the national benefits of your work, as well as provide examples of how your work is being implemented or impacting different geographic regions

Examples: These are example approvals of our firm in 2013-2015

C. National Interest

The third prong is generally the most difficult to satisfy, and is the key to successful NIW (National Interest Waiver) approval. It must be proven that the benefit of the alien's participation in the field of endeavor outweighs the national interest of protecting U.S. workers present in the labor certification process. To clarify the vague language, we can refer to an AAO decision:

"The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien. The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process."
It shows that the alien must demonstrate that it would be adverse to the national interest if they were unable to continue working in their field. Does the alien play a critical role in a project that would be unable to continue without their contribution? Would a specific area of scientific advancement be hindered without the alien's work? Would a national goal be compromised without the alien's continued presence in the U.S.? These are the types of considerations that must be taken into account when arguing that the alien's continued presence in the United States is in the national interest of the United States. Specifically, the AAO elaborated," The alien must clearly present a significant benefit to the field of endeavor" and must establish that there has been "some degree of influence on the field as a whole." Therefore, the alien must show that they have influenced their field of endeavor. This can be shown through any recognition your work has received, as well as through application of your work.

Evidence: In addition to making sound structural arguments that the alien has met the requirements, evidence must be submitted to substantiate these claims. It is not enough to merely state the alien has impacted their field to a greater extent than their peers, but one must provide documentary evidence demonstrating how the alien has done so. We are experts at forming strong arguments to address each of the necessary requirements of the "national interest" prong, as well as compiling sound evidentiary support for each of the claims that we make. It is useful to consider the criteria for EB-1A (Alien of Extraordinary Ability) when compiling evidence in support of the third prong. While the standard of law is much higher for EB-1A (Alien of Extraordinary Ability) and the evidentiary requirements are thus much stricter, the EB-1A (Alien of Extraordinary Ability) criteria can provide a good idea of what types of evidence can establish the alien's past record of achievement as well as influence on their field.

Below is a list of evidence commonly included with our EB-2 NIW (National Interest Waiver) petitions, as well as explanations for how each type of evidence can satisfy the requirements for NIW (National Interest Waiver).

A. Publications & Citation Records (including journal articles, book chapters, and books): A complete publication record should be included with the petition in order to demonstrate the alien's past record of scientific achievement. Publication alone, however, will not demonstrate the alien's influence in the field. The publication record should be accompanied with a citation record in order to demonstrate the influence of the alien's work on the field, and show that the work is being utilized by other researchers in the field. Additionally, journal impact factors and average citation records for the field can be used to show that the alien has a degree of influence above that of the average researcher in the field. It should be noted that there is no "magic number" of citations that will guarantee NIW (National Interest Waiver) approval, and there are many strategies that can be used to offset a low citation record.

B. Letters of Recommendation: Letters of recommendation are a crucial aspect of the NIW (National Interest Waiver) petition. Independent letters of recommendation (from those who have never worked or studied with you, collaborated with you, or advised your work), will carry much more weight with the USCIS than letters from dependent recommenders, and this should be taken into consideration when selecting recommenders. Letters of recommendation should discuss your research contributions and their significance in layman's terms, and also comment directly on the benefit of your work to the United States. Letters of recommendation are also a great opportunity to demonstrate the implementation of one's work. A letter of recommendation from someone who has utilized your work, and can explain how they have done so in the letter, is a great way to strengthen your case. As part of our service, we will draft all of the recommendation letters for you. We will advise you closely on appropriate recommender selection, and how many letters should be drafted for your case. We set out a clear strategy when drafting the recommendation letters to ensure that the letters contain all of the necessary statements to substantiate the claims we have made in the petition. Lastly, we never rely on templates to draft the letters, and instead tailor each letter to your individual needs and unique case strategy.

C. Evidence of Influence: In order to demonstrate the degree of influence you have had on your field, it is essential to highlight any instances of the application or utilization of your work. Citations are a great way to demonstrate this, but other evidence can be used as well including letters of recommendation, patents commercialization, contracts, and article downloads. The petition should highlight as many instances of implementation as possible and provide documentary evidence to support each instance.

In sum, a variety of evidence should be presented to demonstrate how the alien qualifies for a National Interest Waiver. It is not sufficient, however, to simply list the alien's achievements. A holistic approach must be taken to ensure that all together, the petition, letters of recommendation, and supporting evidence will prove that the alien is qualified for a National Interest Waiver. This is our goal at North America Immigration Law Group, and by keeping the requirements of the three-prong test in mind at every step of case preparation, we can ensure that your petition will address all of the necessary aspects of the National Interest Waiver requirements.

2015-2016 USCIS Trends in NIW (National Interest Waiver) Adjudication

There have been several new trends that we have noticed with respect to NIW petitions. These can be broken down between differences we see between the Texas Service Center (TSC) and the Nebraska Service Center (NSC) as well as more generalized trends for how NIW petitions are being adjudicated overall.

Differences Between the Texas and Nebraska Service Centers:

For the 2015-2016 time period, we are continuing to see several trends with respect to a) adjudication times and b) rate of Request For Evidence (RFE) Notices.

Adjudicating Times

In line with the trend we have seen earlier, adjudicating times are still varying widely between petitions sent to the Texas Service Center (TSC) and the Nebraska Service Center (NSC). In general, we are seeing an average adjudicating time from the point of filing of approximately 9-12 months for petitions sent to the TSC versus an average adjudicating time of 4-6 months for those sent to the NSC. However, times can vary widely for both service centers in individual cases.

Rate of RFEs for National Interest Waiver (NIW)

In general, we are seeing a consistent pattern where approximately twice as many RFEs are issued on average from the Texas Service Center than the Nebraska Service Center. Overall, the combined issuance of RFEs is roughly the same and not significantly different overall than from previous years.

Other General Trends For National Interest Waiver (NIW) in 2015-2016

More Focus on "Implementation" of the Alien's Work

As with previous years, we are still seeing more attention being placed on the 3rd prong of the NIW standard in particular. This is also important because the requirements for this prong are arguably more fluid and open to interpretation. Given the wide discretion reviewing officers are given, it is important that the 3rd prong be adequately evidenced in the initial petition. For this particular criterion, the NYSDOT case provides the following guidance:

"The beneficiary must serve the National Interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications."

This means that the alien must show that they have risen to a level of influence that is higher than the majority of their peers, as well as those with merely minimum qualifications in the field. It is essential to demonstrate what sets you apart from others working in your field.

One of the important aspects of one's influence the USCIS has been focused on is the implementation of the alien's work. Based on our experience responding to RFE (Request for Evidence) notices, USCIS has started to request more specific evidence of actual implementation of the client’s work. We have successfully developed strategies to show the application or implementation of clients' work by utilizing their citation records, pre-existing (unsolicited) evidence such as contracts/licenses to use client's work; patents that are being commercialized, evidence of collaborations, emails asking for client's research results, reports in journals/mass media and Letters of Recommendation we have drafted for clients. We at North America Immigration Law Group/Chen Immigration Law Associates always act swiftly based on the latest trends of case adjudication and provide the most effective and efficient assistance to our clients to get case approval.

Attention to "Continuation of Work in the Same Field":

Although neither the immigration law nor the NYSDOT decision specifically requires the petitioner to provide evidence that the alien will continue to work in the same field with an NIW (National Interest Waiver) petition, it is a general theme for employment-based immigration. The petitioning alien needs to show that they plan to continue to work in the field where they claim they have a documented record of past achievements.

For 2015-2016, immigration officers from both service centers have issued more RFE (Request for Evidence) notices requesting specific evidence to satisfy this requirement.

Even though the USCIS has been more strict about this requirement, this year we still have successfully filed many NIW (National Interest Waiver) cases for clients that were still residing outside the United States without any U.S. job offer or clients residing in the U.S. but not employed. For those cases, it is important to consult an experienced immigration law firm and form a successful strategy.

Physicians Seeking National Interest Waiver (NIW)

Please Click Here for more information regarding Physicians Seeking National Interest Waiver (NIW)

EB2-NIW (National Interest Waiver) Reference/Recommendation Letters

A recommendation letter is also called a reference letter, supporting letter or testimonial letter depending on the type of information the letter contains. Recommendation letters are often a core component of an EB-2 NIW (National Interest Waiver) petition. An NIW recommendation letter is one of the most important evidentiary supporting materials as it shows the recognition of experts in the field and your influence on others' work. Because of the importance of the recommendation letters, after clients retain us, we at North America Immigration Law Group/Chen Immigration Law Associates always take time to carefully discuss each recommendation letter with them and make sure we have a strong combination of recommenders. Different from other firms, which simply provide templates for clients to draft these letters or charge additional fees, our firm drafts 4-6 recommendation letters for each client. Drafting the most helpful NIW (National Interest Waiver) recommendation letters require good understanding about USCIS regulations and immigration law. We will finish all the recommendation letter drafts (4-6 letters) within 10 business days for our clients. This is one of the keys to our incredibly high approval rate and short case preparation time.

In addition, one of the key services we provide with respect to your recommendation letters is a deep understanding of not only the utility of any one individual letter, but how to compile a set of letters such that they are complementary to one another. This involves not only a well-rounded understand of your particular case but a deep understanding of how to effectively utilize letters that are dependent versus independent. Dependent letters are those in which you share some sort of relationship with the author of the letter such as sharing the same academic institution, having co-authored together previously, or sit in such a relationship that you have a pre-existing professional relationship. An independent recommend is generally one in which you do not share any pre-existing professional relationship. Each type of letter carries its own potential benefits, risks and utility for your petition. For USCIS, independent recommenders are often best utilized to speak to your influence and work in the field as USCIS tends to view dependent letters as having some sort of bias given your pre-existing relationship. However, dependent recommenders can often provide a more detailed examination of your work or research since they are generally more intimately familiar with it given their pre-existing professional relationship with you. Having a good complimentary mix of dependent and independent letters is often a key resource for constructing a convincing petition letter. We are intimately familiar with the potential benefits and weaknesses of each type of letter and know how to effectively utilize them to give you the best material possible for your petition.

Here we provide a common template of a recommendation letter for use in an NIW (National Interest Waiver) petition. Drafting good recommendation letters requires a legal background and profound understanding of the USCIS's preference of the letters. We truly believe well-drafted recommendation letters are essential for a successful petition. Please note that the reference letters here are just examples to give further clarity on the nature of an NIW letter and should not be actually utilized for a petition.

Or see more about NIW Recommendation/Reference Letter

How to File an EB-2 NIW (National Interest Waiver) Case

To file an EB-2 NIW (National Interest Waiver) Case, you need to fill an I-140 form (Immigrant Petition for Alien Workers) and send the petition materials, including your I-140 form (for paper-based filing) or I-140 E-filed confirmation receipt (for E-filing), petition letter, reference letters and all other evidence supporting your case to the service center based on your jurisdiction.

For more information, please see our article How to File an EB-2 NIW (National Interest Waiver) Case

More detail information about EB-2 NIW (National Interest Waiver)