A national interest waiver (NIW) petition refers to an employment-based, second preference immigration petition for those aliens who have already received a permanent job offer and an approved labor certification. According to USCIS , requirements for the NIW petition are:
Requirement 1 – You must show that you plan on working in the United States in an area of substantial intrinsic merit.
Requirement 2: You must show that the proposed impact of your work is national in scope.
Requirement 3: You must show waiving the labor certification requirement would benefit the national interests of the United States.
For more details, please check the USCIS site https://www.uscis.gov/eir/visa-guide/eb-2-employment-based-second-preference/national-interest-waiver
However, it is noted that there are no established rules and statutory standards regarding so-called “national interest.” For example, the NIW petitioner may be an individual who must have an “advanced degree” or “exceptional ability” in the sciences, arts or business.The NIW petitioner must also persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from his/her proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest. Each NIW case is adjudicated on its individual merits, but the burden of proof is always on the petitioner to establish that exemption from the labor certification will be in the national interest of the U.S.
After the current administration’s tightening of U.S. immigration policy, obtaining an approval for NIW petitions is more difficult than ever before.
According to recently issued Matter of Dhanasar, the waiver is only available for a foreign national who either is an “advanced degree professional” (such as an engineer who has a master’s degree or someone with a PhD degree) or who has “exceptional ability in the sciences, arts or business.” The waiver, however, eliminates the requirement that the foreign national have a job offer from a U.S. employer that was certified by the U.S. Department of Labor after testing the U.S. labor market and meeting other prerequisites.
Important differences from the old standard include (see, e.g., http://immigrationimpact.com/2017/01/18/change-national-interest-waiver-standard-gives-entrepreneurs-path-permanent-residence/):
- The new standard recognizes that a foreign national’s intended work can be in the national interest even when limited to a particular geographic location. Under the NYSDOT standard, USCIS often viewed such activities as “local,” and would deny the waiver.
- The new standard considers the “potential prospective impact” of the foreign national’s intended work, while the earlier standard placed great weight on past accomplishments as the measure of future benefit. This should help entrepreneurs who may not have a lengthy “track record.” Entrepreneurs also should benefit from the new standard’s focus on evidence that the foreign national is “well positioned,” which places the emphasis on planning and process rather than ultimate success. Recognizing that entrepreneurs can experience failures along the path to success, Dhanasar explicitly rejects a requirement that a foreign national demonstrate that the endeavor is “more likely than not to ultimately succeed.” Without this admonition, entrepreneurs most likely would face denials on this basis.
- The new standard gives greater consideration to the foreign national’s qualifications and what he or she seeks to accomplish when determining whether the job offer and permanent labor certification prerequisite are waived. The earlier standard often resulted in USCIS officers requiring a comparison between the foreign national and hypothetical U.S. workers who might have been identified if the permanent labor certification process was required. This was not feasible for an entrepreneur seeking to bring his or her particular talents to the United States.
To prove your qualification for the NIW petition, you may present a letter written by the well-known expert(s) in your field who can verify your skills, knowledge, and past accomplishments. For details, please check http://www.wegreened.com/eb1_niw_approvals?gclid=CObby5fjrtICFZeEswodWvIM4w
Note: In case of the H-1B visa applications, there are typically 65,000 slots available for someone with the bachelors degree and 85,000 slots for someone with the masters degree. In 2016, it is reported that 233,000 people applied for the H-1B visa.