Audra Doyle has many years of experience filing National Interest Waiver petitions.
We find that it is an extremely valuable tool for our employment-based immigrant clients who are working in a field that is in the national interest, because it allows them to avoid the time-consuming and costly process of a traditional PERM Labor Certification.
The National Interest Waiver (NIW) can be self-sponsored - you do not have to have a US employer file this case on your behalf - and we find that it is very helpful for those who do not have a permanent job offer in the United States. Typically, our clients for this category are research scientists, and they are working in academia such as at a university in the US or they're working at a US research institution. We also file National Interest Waivers for entrepreneurs who are creating U.S. jobs, or for other clients whose work is in the national interest of the United States.
There are several elements of this case which must be satisfied in order to be approved. First, this is an EB-2 petition, which means that you need to have either an advanced degree (a Master’s degree or higher) OR you need to demonstrate that you have exceptional ability in your field. The regulations require you to meet three of the following six criteria:
a degree, diploma, certificate, or similar award from an institution of learning related to your field;
a professional license or certification;
10 years (full time) of professional working experience;
a high salary compared to others working in your field that demonstrates your exceptional ability;
memberships in professional associations;
recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional, or business organizations; or other comparable evidence of eligibility
After you satisfy the underlying requirements for EB-2 classification, we then move on to the requirements for a National Interest Waiver. The controlling case is Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which provides the three elements that you need to have to be eligible for a National Interest Waiver.
Prong I
First, you need to provide evidence that your work has substantial merit, and also that it has national importance. In considering this requirement, let’s use an example: A scientist is working in a university laboratory, looking for a new vaccine for a disease that is affecting many Americans. For our National Interest Waiver petition we could show that work on the vaccine is of substantial merit to the field, because other scientists can use this vaccine and your techniques/methods/experiments to advance their own work, and also that it has national importance because it will improve the health of many Americans. Further, we would argue that this work is beneficial for the entire United States, not just a small group or a small location, and has broad national-level importance. Importantly, Matter of Dhanasar takes away the limitation of purely focusing on the geographical reach of an endeavor, and instead allows us to demonstrate the broader implications of an endeavor that takes place in one location.
Prong II
Next, you need to demonstrate that you are “well positioned to advance the proposed endeavor”. Let’s go back to our example of the scientist at the university: We can see from the description above that the scientist is likely one of the key people on the project. However, if she is simply a research technician or doing one small part of the project that can easily be done by another lab worker, Prong II would be difficult to meet. We not only must demonstrate your current work, but also your past accomplishments that make future discoveries more likely. Additionally, the USCIS looks to see how your work has been disseminated to the field, and used by other scientists. Lastly, we discuss your key skills and talents that assist you in moving the endeavor forward.
Prong III
The last part of a National Interest Waiver requires that we show that a waiver of the job offer and a waiver of the normal labor certification requirement is justified. At Doyle Law we provide a legal argument to USCIS for this section of the case, referring back to the evidence presented. This argument includes a discussion of all of the elements of the case, and we demonstrate how the proposed work has substantial merit, is of national importance, and that the petitioner (you) is best suited to move that work forward, and compared to these elements, the need for a PERM Labor Certification is outweighed by the need Americans have of the benefit that the work provides to the United States.
Once the National Interest Waiver is approved, you will then use the Visa Bulletin to determine your eligibility for filing a green card application. USCIS will review that application and look to see if you are still working according to the evidence you provided in the NIW petition.
Do you have further questions?
Please contact us for a case evaluation!