Applying for National Interest Waivers

March 28, 2014

A national interest waiver (NIW) petition is an alternative to the more common way of obtaining permanent resident status through employer sponsorship. It falls under the employment-based immigration EB-2 category. National Interest Waivers have several advantages:

• They allow applicants to waive the labor certification
• No job offer is required
• Applicants may self-petition, rather than rely on an employer to apply on their behalf
• The NIW approval process is a relatively speedy process

However, National Interest Waivers have become much more difficult to obtain since the landmark New York State Department of Transportation case of 1998. In that case, three general requirements were laid out regarding approval of NIW applications: the applicant must seek work in an area of substantial intrinsic merit, the applicant’s work must be national in scope, and the benefits of the applicant’s work must outweigh the national interest of U.S. workers currently involved in the labor certification process.

Area of Substantial Intrinsic Merit

This first prong is usually easiest to prove. An applicant must show that their field of expertise is in an area of substantial intrinsic merit. Since there are no guidelines or limitations on which fields qualify, it can be shown that almost any field involves substantial intrinsic merit. Successful applications generally prove the following:

• The applicant’s admission will improve the U.S. economy
• The applicant’s admission will improve wages and working conditions of U.S. workers
• The applicant’s admission will improve educational and training programs for U.S. children and underqualified workers
• The applicant’s admission will provide more affordable housing for young, aged, or poor U.S. residents
• The applicant’s admission will improve the U.S. environment and lead to more productive use of the national resources; or
• The applicant’s admission is requested by an interested U.S. government agency

National interest cases require emphasis on the overall value and potential of the applicant’s individual contribution to the United States – the fact that the applicant works in a field of “high national interest” is not enough. The applicant may qualify by being found to be a “key” or “critical” member of a team upon a showing that the team function would be severely impaired without the applicant.

At Lubiner, Schmidt & Palumbo, we recommend submitting testimonial letters from substantial, recognized national or international organizations, institutes, or government agencies with the expertise to definitively say that the applicant’s contribution truly is in the national interest. These third parties should also clearly state how they became familiar with the applicant’s work.

National in Scope

The applicant’s work, even if it is focused in a particular region, should still be beneficial to the nation as a whole. For example, a physician may work in one hospital in a particular region, but the benefits of their work may impact the nation through the dissemination of their research or the development of new procedures used in hospitals outside of the region.

We recommend the following to provide support for this argument:

• Studies showing a need for the applicant’s services
• Funding for the applicant’s work provided by the U.S. government
• Citations in field publications showing the impact that the applicant’s work has had on the field
• Letters of recommendation, especially from outside parties, explaining the benefits or importance of the applicant’s work

National Interest

The third requirement is the most difficult to satisfy: an NIW applicant must prove that the benefit of their work outweighs the national interest of protecting U.S. workers presently going through the labor certification process. Because the purpose of the labor certification process is to ensure that the wages and working conditions of U.S. workers would not be adversely affected, an applicant must show that they serve the national interest to an even greater extent than others in their field.

We recommend the following to provide support for this argument:

• Letters from recognized government agencies, cultural institutions, or other national and international organizations with expertise in the applicant’s field, which specifically mention the applicant and explain why their work is in the national interest
• Letters submitted by renowned professors or corporate executives, accompanied by the writer’s resume or CV
• Critically acclaimed articles in major publications about the applicant
• Critically acclaimed published books or articles written by the applicant
• Secured patent(s), with evidence that the patented product, process, or innovation is actually being sold, used, or applied in the field
• Evidence that the applicant’s project is funded by a grant from a government agency or major scientific organization where the funding documents list the applicant as the principal investigator – such evidence should be accompanied by a letter from the funding institution clearly explaining how the project is in the national interest

At Lubiner, Schmidt & Palumbo, our attorneys are here to represent you on any National Interest Waiver issues you may have. Contact us today and we will be sure to guide you through this complex aspect of immigration law.

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