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 need 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 time consuming and costly undertaking for potential employers. This is one reason why many employers are 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, the 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.
Following an AAO decision (Matter of Dhanasar) issued on December 27, 2016, the USCIS has established a new analytical framework to assess eligibility for NIW, replacing the old three-prong test set by the overturned precedent NYSDOT. Based on our vast experience with the NIW petition, we interpret this new framework as potentially more flexible and inclusive of individuals from a broader variety of backgrounds.
North America Immigration Law Group has successfully petitioned more than 2,500 NIW cases with overall approval rate more than 98%. Based on this huge number of successful cases, we have developed winning strategies for the NIW petition, which enables us to offer our "Approval or Refund®" service to some of the National Interest Waiver cases we take.
We are pleased to announce that North America Immigration Law Group has so far received over 6,000 EB-1A, EB-1B and EB-2 NIW approval notices with an approval rate of 97.9% for cases using our "Approval or Refund®" (money back guarantee) service and 96.9% for all types of services we offer for these categories combined. For NIW cases in particular, the approval rate for the year 2015 and 2016 was 99.6% for cases using our "Approval or Refund®" (money back guarantee) service with an overall approval rate for all types of NIW cases of 99.2%. 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.
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.
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:
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).
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.
In this decision, USCIS have revisited the analytical framework for assessing eligibility for “national interest waivers”. The decision established that USCIS may now grant a National Interest Waiver if the applicant demonstrates:
In order to show that the foreign national’s proposed endeavor has both substantial merit and national importance, it must be shown that the applicant’s work is related to an important national goal and that the work is beneficial to the United States. The endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Evidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. In determining whether the proposed endeavor has national importance, USCIS considers its potential prospective impact. They evaluate prospective impact not only in geographic terms but also in its broader implications.
Evidence: In order to support the argument that a foreign national's work is of substantial merit, one must submit evidentiary documents explaining in simple terms why a foreign national's 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 a foreign national's 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 a foreign national's endeavor and the benefits of such work to the United States.
Examples: These are example approvals of our firm in 2013-2015
The new AAO decision has broadened the evaluative framework for “national importance” of the applicant’s endeavor. 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 nationally important, 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 great 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 a foreign national's work is important to the nation as a whole, other forms of evidence can provide more support for these arguments.
Examples: These are example approvals of our firm in 2013-2016
The second prong requires the foreign national to demonstrate that he or she is well positioned to advance the proposed endeavor. Factors USCIS considers include, but are not limited to: the foreign national’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; and the interest of potential customers, users, investors, or other relevant entities or individuals. The petitioners need to establish, with substantial evidence, that they are well positioned to advance the proposed endeavor.
Evidence: Examples of evidence can be detailed expert letters that demonstrate the interest of the U.S government in the petitioner’s research, documentation that the petitioner played a significant role in projects funded by governmental grants, and evidence of the foreign national’s education background, skills, knowledge, expertise, and other notable achievements in his or her field including memberships or media reports.
The new third prong requires the petitioner to demonstrate 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. For this requirement, USCIS may evaluate factors such as: based on the petitioner’s qualifications or proposed endeavor, it would be impractical either for the petitioner to secure a job offer or for the petitioner to obtain a labor certification. For example, the labor certification process may prevent a petitioning employer from hiring a foreign national with unique knowledge or skills that are not easily articulated in a labor certification. Other factors considered include whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contribution is sufficiently urgent to warrant forgoing the labor certification process.
This is favorable to entrepreneurs who have a history of being able to benefit the U.S. by use of their entrepreneurial endeavor, and there is a reasonable projection they could continue to do the same.
Evidence: It is essential to make sound structural arguments that the foreign national's work is beneficial to the U.S. to an extent that the requirement of labor certification should be waived. It is not enough to merely to lay out the foreign national's qualifications, but the foreign national must provide documentary evidence explaining how those qualifications warrant a waiver of job offer or labor certification.
We are experts at forming strong arguments to address each of the necessary requirements of this 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) and EB-2 Exceptional 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 foreign national's past record of achievement and the significance of their proposed endeavor.
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. Government Funding/Grants Funding from reputable institutions or government agencies such as US Military, NIH, NASA, etc are strong evidence in showing the national importance of the foreign national's work. It is essential to demonstrate the foreign national's high level of involvement in the application for the funding and his/her important role in the research related to the funding after it was granted.
D. Membership If the memberships are in the foreign national's field of expertise and require outstanding achievements as the selective criteria, the memberships can improve the foreign national's overall credentials.
E. Awards For awards to strengthen the NIW petition, ideally they need to be given specifically to the foreign national and nationally/internationally recognized. Awards open to individuals at a particular institution, city, or state/ region/ province are not be as influential. For instance, an award given by the American Chemical Society would likely be nationally recognized because it is the largest professional organization for chemists in the U.S.
F. Published Materials About the Foreign National The benefit of one's work to the U.S. can be shown by media coverage. If the articles or published material used as evidence focused on the foreign national and/or the work which he/she has performed in the field of endeavor, and the media enjoys national or international recognition, this will be helpful for the NIW petition.
G. Patents, Contracts, Licenses and Technology transfers A complete patent record, accompanied with citation or commercialization evidence is significantly helpful for demonstrating the utility of the foreign national's work as being adopted by the industry. Other similar evidence including contracts, licenses and technology transfers are also demonstrative of the implementation of the foreign national's work.
H. Evidence of Others Relying on the Foreign National's Work If the foreign national's work or assistance was requested by researchers from outside institutions, this indicates the impact and significance of the foreign national's endeavor. Documentation such as email correspondence and acknowledgement in major trade publications or major media are good evidence.
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.
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.
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 see 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 see 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.
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 recommender is generally one with 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
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