Q: What is a National Interest Waiver (NIW)?

A: A National Interest Waiver (NIW) petition is part of the employment-based, second-preference immigration category that requests that the otherwise necessary U.S. job offer and labor certification requirements be waived for the sake of the “national interest.”

 

Q: What are the minimum requirements for an NIW?

A: Since this is an employment-based, second-preference (EB-2) petition, the beneficiary of an NIW must first qualify as either an “Advanced Degree Professional” or an “Alien of Exceptional Ability.”

 

Q: What is an Advanced Degree Professional?

A: The term “Advanced Degree Professional” means that the beneficiary either has an advanced degree (M.A., M.S., M.E., M.D., or Ph.D.) or its foreign equivalent, and is working in an area that requires at least a bachelor’s degree or is traditionally regarded as a profession requiring a high level of postsecondary education, such as a lawyer, doctor, architect, engineer, or professor. In some cases, a bachelor’s degree plus five years or progressive experience in a professional occupation may satisfy the requirement of an “advanced degree.”
Please keep in mind that applicants holding an advanced degree from a U.S. university or foreign equivalent do not need to additionally prove that they qualify as an “Alien of Exceptional Ability.”

 

Q: What is an Alien of Exceptional Ability?

A: According to USCIS regulations, this designation refers to an alien who demonstrates exceptional ability in the sciences, arts, or business, satisfying at least three of the following conditions:

1. An official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
2. Evidence in the form of letter(s) from current or former employer(s) showing at least ten years of full-time professional experience
3. A license to practice the profession or certification for a particular profession or occupation
4. Evidence that the alien has commanded a salary or other remuneration for services reserved for those with exceptional ability
5. Evidence of membership in professional associations
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

 

Q: To apply for an NIW, do I have to be both an Advanced Degree Professional and an Alien of Exceptional Ability?

A: No, an alien applicant needs only to satisfy either the “Advanced Degree Professional” or the “Exceptional Ability” requirement. Proof of both is unnecessary. Please note that qualifying as either one fulfills the minimum requirement for the EB-2 category and that fulfilling either requirement, or even both, does not automatically guarantee a successful NIW case.

 

Q: Who has the burden of proof in showing that a petitioner would benefit U.S. national interest?

A: The burden of proof in NIW cases rests solely with the petitioner and his or her attorney.

 

Q: Can a Ph.D. student apply for an NIW?

A: Yes. Since no job offer is required, a Ph.D. student may qualify for an NIW petition. Here’s a couple of examples to help clarify this question.

 

Q: How many publications are required to meet minimum NIW requirements?

A: There is no minimum number of publications required. USCIS decides each petition on a case-by-case basis.

 

Q: Would evidence of a labor shortage in the NIW beneficiary’s profession be a factor in an application?

A: No. USCIS explicitly modified the NIW rules set forth in NYSDOT in order to avoid confusion about the need to submit evidence related to the labor market. Its new Dhanasar decision avoids such language, as the NIW is specifically intended to waive the labor certification process required for the EB-2 visa.

 

Q: Do I need to live in the U.S. in order to apply for an NIW?

A: No, an alien may reside either in the U.S. or abroad. That said, your NIW claim will be more difficult to establish if you apply while living outside the U.S.

 

Q: Whom should I contact to obtain letters of recommendation?

A: Letters of recommendation can be obtained from various sources. Generally, you should obtain recommendations from experts in your field. In their letters, they should demonstrate how you have made a significant contribution to your field and have achieved a degree of recognition.

Other possible recommenders include top-level management figures of prospective companies making use of your work, or current or former employers.

 

Q: How many letters of recommendation would you say are needed for a successful NIW petition?

A: There is no minimum number of letters of recommendation required. Generally, we include five to seven letters of recommendation in our clients’ NIW applications, but the most important consideration is always quality, not quantity.

 

Q: I am considering applying for an EB-1 visa. Can I also apply for an NIW?

A: Yes. You are not bound by only one immigrant petition (Form I-140). You are allowed to petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether USCIS will approve any given case. In addition, getting approval for both EB1A and NIW enable you to utilized whichever priority comes first to adjust your status or apply for consular processing

 

Q: If I have already applied under another classification, is there any reason for me to also apply for an NIW?

A: Yes. You may want to additionally apply for an NIW to improve your chances of getting a petition approved. It is impossible to predict whether USCIS will approve any given case. If the other case is eventually denied, you may still get your NIW petition approved. In addition, some types of petitions require an employer sponsor, and anyone approved under such a petition would be required to work for that employer for at least some time after the associated petition is approved. An NIW requires no employer sponsor, so an alien approved for an NIW is not bound to any particular job.

Q: If I apply for an EB-1 and an NIW at the same time, will one application negatively affect the other?

A: No, they are unrelated. One will not affect the other, either positively or negatively.

Q: I’m choosing between an NIW and an EB-1A. Which petition would you recommend I apply for?

A: You should always keep in mind that filing both an NIW and an EB-1A petition concurrently is an option. However, each petition is different. While overall approval rates for EB-1A petitions tend to be lower, if your case is clearly strong enough to go that route, your chances of success are higher by applying for EB-1A. Especially, if your country of birth has a long visa backlog for EB2, there is an incentive for you to try for EB1A and use NIW as a backup. However, if your case is not as distinguished as successful EB-1A cases should be, an NIW petition would be a more realistic approach.

Q: Can I apply for an adjustment of status (AOS) and file an NIW petition concurrently?

A: If the visa number for EB2 is current based on your country of birth, then yes! Although USCIS will not adjudicate your AOS until your NIW gets approved.  But the overall timeframe from starting preparation of the NIW petition to receiving a green card will definitely be shortened if your NIW is eventually approved.

Q: After my NIW is approved, do I need to remain with my current employer?

A: No, provided that you are the petitioner in the NIW petition (self-petition).

 

Q: After my NIW is approved, am I required to remain in the same field as my NIW application indicated?

A: Yes, you are required to continue to work in the field indicated in your NIW petition, since you argued that doing so would be beneficial to U.S. national interests. If you venture into another area, USCIS may deny your application to adjust status (Form I-485) or subsequently revoke your permanent residency.

 

Q: How long does it take for USCIS to process NIW cases?

A: Generally, it takes USCIS between six months and one year to process an NIW case, but the processing time for any given case can vary considerably.