National Interest Waiver

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What is the National Interest Waiver?

An alien may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his (her) admission to permanent residence would be in the National Interest.

There is no rule or statutory standard as to what will qualify an alien for a National Interest Waiver. The USCIS considers each case on an individual basis.

The procedure is to file the case with evidence to establish that the alien's admission to the United States for Permanent Residence would be in the national interest.

NYSDOT – New York State Department of Transportation Decision

NYSDOT is a commonly used acronym that refers to a precedent decision by the Administrative Appeals Office (AAO), the appellate body of the United States Citizenship and Immigration Services (USCIS). It stands for New York State Department of Transportation and was decided by the AAO on August 7, 1998. In this case, the foreign beneficiary was a civil engineer in possession of a master’s degree from a U.S. institution. The petitioner was the foreign beneficiary’s employer and the proposed field of employment involved the New York State transportation system.

For more information about NYSDOT AAO decision, please see: NYSDOT Decision

The 3-Prong Test of “National Interest”

Since there is no official definition of “national interest,” the USCIS relies upon the 1998 decision by its appellate body, the Administrative Appeals Office, in the case of the New York State Department of Transportation (EAC 96 063 51031, AAO August 7, 1998) to establish the standard by which National Interest Waivers are approved or denied. These thresholds are outlined as follows.

1. The field in which the foreign beneficiary seeks employment should be one of “substantial intrinsic merit.”

2. The benefit proposed by the foreign beneficiary should be “national in scope.”

3. Failing to waive the requirement for labor certification would adversely affect the national interest.

Prior to this decision, a wider range of beneficiaries were granted approval for a National Interest Waiver; however, this decision has created a more stringent standard by which USCIS officers judge National Interest Waiver petitions. The first two prongs of this test are relatively easy to meet, but they cannot support a petition by themselves. More often than not applicants receive a request-for-evidence (RFE) in reference to the third prong rather than the first two prongs.

http://wiki.wegreened.com/3-prong-test-national-interest/

Who qualifies?

Factors that have been considered in successful cases include:

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

Many of our cases in which National Interest Waivers have been approved were supported by affidavits from well-known, established and influential people or organizations.

For example, an application being submitted for a scientist should contain affidavits from leading scientists, representatives, and from other organizations associated with the type of research to be pursued.

Documenting past achievements, as well as proof that the alien has already created jobs, turned around a business or created an increase in exports or other economic improvements should prove instrumental in gaining approval.

The following is a note from the USCIS Texas Service Center:

  • Those seeking qualification for a waiver of labor certification based on services considered in the national interest must make a showing significantly above that to prove prospective national benefit required of all aliens seeking qualification as exceptional. It applies only to aliens who will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States.
  • National interest cases require that the emphasis rest with the overall value and potential of the beneficiary's individual contribution to the U.S. -- not the fact that they are working in a field of high national interest. The alien may qualify by being found to be a key or critical. member of a team if it can be shown that the team function would be severely impaired without this member. Merely working in an area of national interest does not necessitate a finding of national interest qualification.
  • We highly recommend the submission of better testimonial letters from substantial, recognized national or international organizations/institutes/ government agencies with the expertise to definitely say that the work or contribution of the individual truly is in the national interest. The authors of these third-party testimonial letters should clearly state how they came to be familiar with the aliens work.
  • When accompanied by these improved advisory opinions. and when focused on the individual, time will be saved and returns for evidence will be reduced. Also, placing the testimonial evidence with the attorney/petitioner summary letters at the front directly beneath the Form I-140 will eliminate examiner time spent wading through academics articles, field surveys, general reports, etc., which often add minimal weight to bolster the claim for his/her specific achievements or individual national interest potential.
  • We see many claims for graduate students who have not had enough time or experience as a researcher or engineer in order to qualify for E21 category and have done little, outside the work required to complete their degree. Often the claim is made that their area of research is so potentially cutting edge or so significant that it must be in the national interest. In accordance with established criteria, it should be very difficult for the above-described person to qualify. the class is not designed for all graduate researchers to qualify.
  • Our officers look for realistic evidence of substantial prospective benefit to a national interest item or agenda which specifically sets the alien apart from others in the field.

What types of supporting documents are required?

Evidence of a one-time achievement (i.e., a major, internationally-recognized award), or at least three of the following:

  • receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor,
  • membership in associations in the field which require outstanding achievements as judged by recognized national or international experts, published material about the alien in professional or major trade publications or other major media,
  • participation on a panel or individually as a judge of the work of others in the field or an allied field,
  • original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field,
  • authorship of scholarly articles in the field, in professional or major trade publications or other major media,
  • display of the alien's work at artistic exhibitions or showcases,
  • evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation,
  • evidence that the alien has commanded a high salary or other high remuneration for services, or
  • evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

If the above standards do not readily apply to the alien's occupation, you may submit comparable evidence to establish the alien's eligibility.


Reference

National Interest Waiver
Required Supporting Materials & Supporting Evidence
List of Documents Required for National Interest Waiver
Information about NIW without PhD
National Interest Waivers for Artists & Musicians

NIW
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