National Interest Waiver: What You Need to Know
National Interest Waiver: What You Need to Know
A National Interest Waiver is a petition that is a part of the employment-based, second-preference immigration category. The U.S. Citizenship and Immigration Services (USCIS) has jurisdiction over this petition.
The NIW petition essentially waives labor certification and job offer requirements for the sake of national interest.
Requirements for a National Interest Waiver Petition
There are two minimum requirements for making an NIW petition: being an “Advanced Degree Professional” or being an “Alien of Exceptional Ability”.
An Advanced Degree Professional means that the NIW’s beneficiary holds an advanced degree – this may be a PhD, M.D., M.E., M.A., M.S., or an equivalent from the beneficiary’s country of origin. The degree should be in a profession that is traditionally regarded as requiring high-level education such as law, engineering, and medicine. In some cases, the beneficiary may be required to prove that he/she has at least five years of work experience or progressive experience in his/her field of work.
An Alien of Exceptional ability, on the other hand, is a petitioner who shows great expertise in business, arts, or sciences. Anyone bearing this distinction should meet at least three of the following conditions:
- Have a degree, diploma, certificate, or any other certification in his/her field of expertise
- Have evidence of at least ten years of experience in his/her field of expertise
- Have evidence of being a member of a professional association
- Have a license to practice in his/her field of expertise
You don’t need to be both an advanced degree professional and an alien of exceptional ability to apply for an NIW petition. However, you will be required to present several documents.
Documents Required for Applying for a National Interest Waiver
The only mandatory documents required when applying for the NIW are Form 1-140 and Form ETA-750B. However, you can make your case stronger by providing letters of recommendation.
There is no limit to the number of letters of recommendation that you may provide. Experts recommend getting a petition letter drafted by an immigration attorney to improve your chances of getting approved. You should also obtain a recommendation from professionals in your field of expertise. However, it is advisable to obtain these letters from non-colleagues – the USCIS gives preferential treatment to letters drafted by non-colleagues as they are considered more honest and unbiased. Additionally, be sure to ask the person recommending you to demonstrate that you have made significant contributions to your field of expertise in their letters. You can also obtain a letter of recommendation from your employer.
Applying from the U.S.
You can apply for the NIW petition from virtually anywhere in the world. However, applying from outside the U.S. drastically reduces your chances of getting approved due to unavailability should issues arise. Applying from within the U.S. is much easier as you will be more involved in the process and tackle setbacks in a timelier manner.
In either case, however, it helps to consult an immigration attorney for guidance and representation. The attorney will help to expedite the process and minimize the number of setbacks caused by simple mistakes.
What about the EB-1A Petition?
You are not limited to applying for the NIW petition as there are several other channels of getting permission to work in the U.S. In particular, you can also apply for the EB-1A petition to increase your chances of getting approval.
The EB-1A petition is different from the NIW, but it affords you the same privileges as the latter. You can apply for both petitions simultaneously. However, note that approval ratings for the EB-1A petition are lower than those of the NIW, so you should also consider other channels and visa applications. However, note that the letters of recommendation you use in your EB-1A petition cannot be used for the NIW petition. Applying for both petitions at the same time will in no way affect either petition.
How does USCIS Make its Ruling?
Applying for the NIW petition was much easier during the 90s. Back then, the USCIS was known as INS, and it made more favorable decisions. However, the Administrative Appeals Office changed it to its current state and tightened the regulations in 1998 in conjunction with the New York State Department of Transportation (NYSDOT). The NYSDOT further redefined NIW’s regulations in Matter of Dhanasar. The regulations are now clearer and less ambiguous.
It is important to note that the primary role of the labor certification process is to look out for the interest of U.S. workers. As such, you have to prove that you are better suited to work in the U.S. when compared to a U.S. worker with similar minimum qualifications.
Overall, the USCIS considers the following factors when determining whether you qualify for the NIW:
- That your proposed endeavor is important to the U.S. and has substantial merit
- That you are well-positioned to advance your proposed endeavor
- That it is in the best interest of the U.S. to waive the usual requirements for immigrants seeking to work in the U.S.