The United States employment-based green card application can be very difficult due to the lengthy process required of both the foreign applicants and U.S. prospective employers. It involves typically three stages, which are: the job offer, labor certifications, and permanent resident petition.
These three phases can take have distinctive requirements, and the waiting can sometimes be exhausting for applicants. However, for those who can prove their worth, some of these steps can be circumvented, expediting the process, thanks to the provision for the National Interest Waiver (NIW) in the Immigration Act.
What is the National Interest Waiver?
The National Interest Waiver petition is a request seeking that the labor certification requirements of an employment-based visa be waived because doing so will be beneficial to the United States overall. If granted, you will be able to bypass the DOL process and may also self-petition for your EB-2 without being sponsored by a U.S. employer.
Who is Eligible for a National Interest Waiver?
You may be eligible to request for a National Interest Waiver if you meet at least three out of these EB-2 eligibility criteria and are able to give convincing reasons why the USCIS should forego the generally compulsory labor certification in your own case.
National Interest Waiver Process
While the criteria might appear daunting, approaching the process in the right perspective will make a big difference in your application process and help avoid denial at the end. The following guidelines will help you in getting approval for your NIW petition:
Consult an Experienced Immigration Attorney
Though there is no law compelling you to hire an attorney for your immigration, however, judging by the increasing denial rate of employment-based green card applications recently, it is always the best to be guided by a professional. Having legal counsel for the NIW process will save you time, money, and help prevent denial.
The NIW process contains several aspects that must be fulfilled and a single mistake could lead to months or years of delays, not to mention outright denial. To start with, an attorney will look at your qualifications, past achievements in your field, and the nature of your proposed endeavor and help you determine if getting an NIW is your best available option.
Prepare the Supporting Evidence
The required evidence depends on the specific field of your proposed endeavor along with your academic qualification, job experience, and biographic data. Some of the general required items for the NIW process include:
- Copies of a completed ETA 750 form
- A completed I-140
- A copy of your passport
- Proof of your current non-resident status in the U.S. if applicable
- A copy of your most recent I-94 (front and back)
- Recommendation letters
- A copy of your highest academic qualification with records or transcripts
- A copy of your resume
- Evidence of peer review
- Evidence of citation record of your work
- Professional journal in which your work(s) has been published
- NIW petition letter
Preparing Your National Interest Waiver Supporting Evidence
These documents must be presented, drafted, and addressed according to the USCIS requirements to avoid rejection. Inadequate preparation of your NIW petition and documents is a direct route to getting a Request for Evidence (or RFE).
For instance, your letters of petition and recommendation as well as your resume must demonstrate your eligibility for an NIW and show that your request meets each of the three prongs of the National Interest Waiver requirements. An experienced NIW will help you do this.
Understanding the National Interest Waiver Requirements: Matter of Dhanasar, 2016
Prior to 2016, the National Interest Waiver petition had been adjudicated using the 1998 NYSDOT criteria, which were later found to contain some ambiguity. The process was repurposed by the Administrative Appeals Office (AAO) decision in the Matter of Dhanasar, 2016.
Now, to satisfy the requirements for the National Interest Waiver, you must be able to prove that your proposed endeavor in the U.S. meets the following three crucial elements:
The First Prong: Substantial Merit and National Importance
For you to be considered for an NIW, the first criterion is proof that your proposed endeavor in business, entrepreneurship, technology, science, culture, education, or health is of substantial merit and national interest.
The endeavor must be beneficial to the United States as a whole, and not local or regional in nature. Though the AAO ruled that an applicant does not necessarily have to show the endeavor’s economic benefits to the U.S., its potential still needs to be established. You will need to convince the USCIS that your employment or entrepreneurship, though it may be within a particular location, will eventually be beneficial on a national scale either directly oforr indirectly.
The Second Prong: National in Scope – Advance the Proposed Endeavor
This second prong is to determine whether you are well-positioned to advance the endeavor. The USCIS decision on this will be based on your skills, education, experience, and past achievements in the proposed area of specialization. It will also look at a plan for future activities, progress towards realizing the proposed endeavor, and the interest of those who will benefit from the endeavor such as potential users, customers, investors, as well as other individuals or entities.
The Third Prong: It is in the U.S. National Interest to Waive the Labor Certification
Obtaining a PERM Labor Certificate is the first crucial requirement for most employment-based U.S. visas. This is to protect the interest of both foreign and U.S. workers. The U.S. Department of Labor created the mandate to ensure all alien workers are treated fairly by their employers.
The office is interested in the contracted agreement between a prospective employer and the foreign national applicant to ensure that the same compensation and favorable working conditions deemed for U.S. workers are given to the applicant.
In the same vein, the PERM protects the jobs of U.S. workers by ensuring that an alien’s proposed employment will not adversely affect the interest of the U.S. workers. Thus, an EB-2 visa can only be granted provided that there are no qualified U.S. workers who are interested in the position.
However, in a situation where the national interest is involved, this requirement can be waived. You must prove that the national interest would be affected if you are subjected to the labor certification application process. You may also need to show how it will be against the general national interest if the employer were to be denied your service and the job were to be given to a less-qualified U.S. worker. The USCIS will look at your petition and consider whether its derivative benefits to the U.S. truly justify the requested waiver. It will also consider if your proposed contribution to the national interest is urgent enough to warrant waiving the labor certification process.
Meeting the Three-Prong Requirements for National Interest Waiver
If you are an employee, you can prove your job to be of national importance by the potential, experience, qualifications, past achievements, and location of your job offer. For example, a physician’s practice would be considered national importance if he or she agrees to work in an underserved area to help improve the quality of life of U.S. residents.
Also as an entrepreneur, a well-detailed business plan that emphasizes the number of U.S. workers your business will employ, the proposed social responsibility of your business, and every other key feature of the investment will be helpful in this regard.
Though the Matter of Dhanasar has brought about positive results and a clearer understanding of the NIW requirements, it is still within the discretion of the USCIS to grant or deny a petition. Some applicants might still receive a denial for lack of clarity when proving they have satisfied each of the three prongs, despite being qualified for the waiver. Your immigration attorney will help you highlight the importance of your proposed endeavor in the following ways:
- How it benefits the U.S. economy
- How it will improve the working conditions of U.S. workers
- How it will improve the environment in the U.S.
- The benefits to a specific U.S. agency or government in general
- The benefits to the U.S. education sector
- Why it is more advantageous to be granted waiver than to go through labor certification process
- The immediate and long-term benefits of your proposed endeavor to the U.S.
- And every other piece of evidence as deemed fit in your case.
National Interest Waiver Petition Denial
A National Interest Waiver request may be denied for many different reasons. Some reasons for NIW denials include being ineligible, errors on the part of the petitioner or beneficiary, lack of clarity on fulfilling the requirements, and inappropriate filing of the petition. If your request is denied by the USCIS, you may be able to appeal the decision. However, the best thing is to avoid this right from the onset by hiring the service of an experienced NIW attorney.
How VisaNation Law Group Immigration Attorneys Can Help
As you can see, the National Interest Waiver process requires thoroughness and meticulous documentation. With the help of a professional attorney, you can greatly improve your chances of being approved.
VisaNation Law Group’s highly experienced NIW lawyers who have helped countless foreign nationals file their NIW petitions and obtain their green cards. They will help you with your case and guide you through the process from start to finish. To get in touch with our office, you can schedule a consultation with us today by filling out this contact form.