EB-2 NIW National Interest Waiver

Summary 

Contrary to an EB-1A visa (for people with nontypical skills), an EB-2 visa is for immigration due to employment, requiring a permanent job with a labor certification. Because of this, the recipient must have a secure employment offer, and has to have the employer petition for them. Employers are often hesitant to undertake these petitions as it can be a quite lengthy and costly process. 

An exception to this is the “National Interest Waiver” clause for an EB-2 visa. This would establish the individual’s relocation as being in the nation’s best interest, thus waving the need for the offer of employment and labor certification, meaning the individual could petition for themselves. Because a higher standard must be met in this case, the NIW has more requirements. Filling out Form I-140 along with evidence proving permanent residency is in the nation’s interest are the main aspects of the procedure. 

Based on a decision by the Administrative Appeals Office in late 2016, there is now a new system to determine NIW eligibility. This new system has the potential to be less strict and inclusive to those from different backgrounds. 

GreenCardLink.com has petitioned over 3,000 EB-1s and NIWs with a success rate of 98%. Due to this high success rate, we have established the most effective strategy for the NIW. In just the last year, we were granted over ….. NIW approvals. Through our quality of service, individuals from a range of areas were granted approval for NIWs. Clients have been in fields such as engineering, the sciences, medicine, history, mathematics, and technology. 

We are able to relate to our clientele on a deeper and more personal level, as would happen in a larger firm, and at the same time, giving them personalized attention, similar to what is expected from a small firm. Quality is our top priority, and our clients are never just numbers, they deserve time and attention. 

EB-2 Qualification is Necessary

It is important to remember that success with a national interest argument is not valid if the basic requirements for “entry” of the second preference classification are not met. Thus, an NIW will only be part of the equation once the second preference threshold is passed. 

“National Interest”?

What classifies as “national interest” is not specified in the Immigration Act of 1990, but is said to be “above that necessary to prove prospective national benefit.” Due to this, the reasoning can be fairly flexible and each case is judged according to its own facts. 

Through the government’s decisions, it has been made clear that there needs to be an obvious benefit to society for a job to be seen as being in the nation’s interest. These can include :

1. An amelioration of salaries and working environments for employees
2. An improvement to the economy 
3. A betterment to the environment and more sustainable use of resources 
4. An increase in affordable housing for residents
5. A government agency’s request 

New York State Department of Transportation Decision 

The precedent set in 1998, in regards to NIW requests, placed stricter standards than previous for acquiring the waiver. Three main aspects were examined when placing a request for an NIW, these are :

1. Area of Substantial Intrinsic Merit 
2. Proposed Benefit of National Scope
3. National Interest to the U.S.

NYSDOT Decision Overturned by Administrative Appeal Office in 2016 

Through this new decision, the United States Citizenship and Immigration Services altered the requirements for eligibility for NIWs. Waivers may be granted if the individual indicates : 

1. Their goals have merit and are of national importance 
2. They are on track to achieve their goals
3. It would benefit the U.S. to bypass the job offer and requirements for labor certification 

Meeting the NIW Requirements

1. Substantial Merit and National Importance 

To prove that the applicant’s venture is of sizable merit and national importance following the Administrative Appeal Office’s 2016 decision, it needs to relate to a significant goal of the nation and the work has to be useful to the U.S.

1A. Substantial Merit 

Merit can be in a variety of areas including, but not limited to, education, medicine, the sciences, technology, or business. Demonstrating the possibility of having a large impact on society is an advantage, but not necessary. 

An individual must include documents that demonstrate why the work is significant and ways it can be applied and benefit the U.S. Documentation to prove the individual’s plan has merit incorporates but is not confined to:

1. An in-depth explanation of the plan and reasons it has substantial merits
2. Concrete evidence reinforcing the individual’s plans and solidifies its merit 

Letters of recommendation and publications or reports discussing research and its significance are great pieces of evidence to do so. 

Examples : Situations our firm handled

• An individual’s research in …… goes hand and hand with …. (approval notice #)
• A scientist …. 
• A resident physician .. 

1B. National Importance 

The AAO decision- Matter of Dhanasar expanded the way “national importance” was depicted by taking into consideration the possible effect the individual’s endeavors may have. This possible effect is looked at in a worldly manner rather than just geographically. For example, a doctor working in a hospital may be thought to only benefit that region, but instead, they can say they benefit the nation with their research and any advances they make in the field. Because scientific developments often go hand-in-hand with national goals, it can be simple to establish that scientific research is nationally important. 

Documentation demonstrating the following can be presented : 

1. The individual has connections within a field, nationally or globally 
2. The individual has the means to utilize U.S.-based workers or has positive economic impacts
3. The individual will strengthen welfare and/or cultural or artistic enhancement
4. The individual influences an area said to be of national importance by someone in the government 

The documentation must illustrate the impact possible from the individual’s venture. Apart from explaining ways in which the work is significant for the nation, more support can be provided through other forms of documentation. 

• Financing from agencies relating to the government: the individual’s work financed by the government surely proves the work’s benefit to the U.S. 
• Citations: illustrate the work’s impact on the field, while also showing the work is used throughout the nation 
• Recommendation letters: can explicitly describe the benefits of the work for the nation, and the way in which the work is applied

Examples: Situations our firm handled

2. On Track to Move Endeavor Along 

Under the second prong of the AAO decision, it is required to prove that the individual is situated in a way to further their planned venture. Some of the factors the USCIS looks at to determine this include a level of education, skill set, and previous successes. They will also look at a plan for the future; progress in reaching the endeavor; and curiosity of possible users and investors. Even without certainty, the efforts will succeed, with sizable proof, it may be decided that the individual is on a path of advancement regardless.

Evidence can include letters depicting the government’s interest in the individual’s research, proof the individual was part of projects paid for by the government, expertise, documentation of education levels, and other achievements. 

Examples: Situations our firm handled

While gathering evidence, it is beneficial to take into consideration any standards for EB-1A and EB-2 visas. Although the standards and requirements are significantly more stern, they can help formulate a sense of what type of evidence is effective in establishing one’s past achievements and the importance of their planned endeavor.

Following are different pieces of evidence often used with EB-2 NIW petitions and ways they can be used to satisfy the qualifications for NIWs. 

1. Any publications and records of citations: Incorporating a comprehensive record of any publications, including articles, books, and academic journals will indicate past scientific achievements. Publications should be alongside a record of citation to establish that the work is actually being applied by others. 
2. Letters of recommendation: Letters of recommendation play a significant role in the NIW petition. Letters from people the individual has no relationship to (independent letters), will be more influential than dependent letters of recommendation. These letters should explain the individual’s contributions, their importance, and the benefit the work has on the U.S. Having someone explain ways they have implemented the work will reinforce the case. 
3. Government Funding: Investments by government agencies, as well as institutions, show the significance of the work, but it is crucial to establish the significance of the individual’s role following the funding.
4. Membership: If in the individual’s specific field of skill and requiring particular criteria, it may enhance the individual’s credibility.
5. Awards: Awards to the individual recognized nationally and/or internationally hold the most influence.
6. Published Material about Individual: Media coverage can be used to highlight the benefits provided by the individual and/or their work in the specific field.
7. Patents, Contracts, and Licenses and Transfers: A record of patents with a citation or proof of commercialization depicting the usefulness of the work and its having been assimilated into the industry.
8. Others Reliance on the Work: Documentation in the form of emails and acknowledgment of the individual’s work having been requested by separate establishments.
9. Critical Roles : Proof that the individual has had a significant position in the endeavor or something of similar nature.

3. Beneficial to the Nation 

Through the AAO decision, the third prong demands an individual to indicate it would be in the U.S.’s best interest to bypass the requirements for a set job offer and labor certification. While this protects the labor supply, it also acknowledges that in specific situations factors seen to be of national interest overweight benefits to the labor certification system. 

With respect to this criteria, USCIS may look into whether it would be illogical to obtain a concrete job offer or a certification of labor. For instance, because of the process to obtain a labor certification, an employer may be unable to hire a foreign individual with a unique skill set or knowledge difficult to express in a certification. Additional factors that are examined include whether the individual’s work would be an asset to the U.S., even with other capable workers available; if the national interest of the individual’s input is great enough to bypass the labor certification process; if the individual’s efforts could create new jobs within the U.S.; and if the individual does not have a negative impact on U.S. workers. 

The AAO decision – The matter of Dhanasar is especially advantageous for business people who have previously benefited the U.S. through their efforts. 

Examples: Situations our firm handled

Recent USCIS Trends in NIW Decisions 

New trends have emerged in regard to NIW petitions in the last couple of years. These trends can be separated within the Texas Service Center (TSC) and Nebraska Service Center (NSC) and broader trends to how NIWs are decided on. 

TSC and NSC differences 

We’ve noticed multiple trends in regard to Request For Evidence (RFE) Notices

Rate of RFEs for NIWs

Overall, around double the amount of REFs given out by the Nebraska Service Center are given out by the Texas Service Center. The issuance and approval rates are mostly consistent with what they were previously. 

Recent NIW General Trends 

Focus on Prong 3:

After the Dhanasar case, Prong 3 was seen as the ultimate determinant of merit in opposition to providing a labor certification. A couple of years back, objections based on Prong 3 alone were uncommon, but as decision-makers build a deeper understanding of Prong 3, an increase in the objections can be observed. Due to this, it is advantageous to explain why there would be difficulties in acquiring a labor certification, why the work is so pressing, or why the need for the certification is rendered unimportant in that specific situation. 

Individuals Abroad

At GreenCardLink.com we have filled over …… NIWs for individuals living abroad with no job offer in the States or unemployed individuals living in the U.S. This creates a chance for rejection depending on who is assigned the petition but can be overcome through evidence clearly exemplifying the individual’s credibility within their field. 

Continuation of Work in the Field

Even though it is not specified in law or through a decision that an individual supplies proof that they will remain to work within the same field after an NIW petition, it, however, is assumed in employment-based immigration. In the past years, RFEs (Request for Evidence) have been issued requesting clear evidence that the individual plans to continue working in the field they have claimed to have prior achievements. 

Letters Accompanying EB2-NIW

Based on the contents of a letter of recommendation, it can be referred to as a reference letter, testimonial letter, or supporting letter. These letters are the main piece of the NIW petition. These letters hold such significance because they depict the acknowledgment from experts and the impact of the work. At GreenCardLink.com we recognize the importance of letters of recommendation so we will thoughtfully discuss in detail the letters and be certain to have a mix of recommenders. We draft 4-6 letters for all clients within a time span of 10 days. 

Furthermore, not only do we look at the strength of a letter on its own, we look to see how to make a set of multiple letters complement each other. To do so, a thorough understanding of when to effectively use dependent vs independent letters is necessary, as well as their risks and benefits. Letters from authors whom you have a relationship with are dependent letters. This can include a place of work or a relationship in which there has been an already established professional relationship. Although dependent letters can be seen as biased, they can offer a more complex analysis of the work or research. A letter from an individual with no shared previously established professional relationship with you is considered an independent letter. These are seen as unbiased and are great in addressing the impact and specific work in said field. To create the most optimal petition letter, it is key to have a mix of letter types that work well together. 

To create effective recommendation letters, a true comprehension of the USCIS’s preference for letters is crucial to successfully petitioning an NIW. Below are guides for recommendation letters to use in the partitioning of NIWs. 

Insert examples/templates 

Filling an EB-2 NIW

In order to file for an EB-2 NIW, the I-140 form– Immigrant Petition for Alien Workers – and petition materials must be sent to the service center based on your governance. This includes the I-140 form or the confirmation receipt, the actual petition, letters of reference, and anything else that would be in support of the case.