Qualifying For an EB-2 National Interest Waiver

The National Interest Waiver (NIW) is a great immigration option for foreign nationals seeking U.S. permanent residency (green card) by demonstrating that their work is of national interest to the United States. To successfully navigate the NIW process, it is essential to understand the recommendations and requirements set forth by the U.S. Citizenship and Immigration Services.

In late 2016, the Administrative Appeals Office (AAO) issued a precedent decision in the Matter of Dhanasar. The Matter of Dhanasar replaced the previous framework established in the Matter of New York State Department of Transportation (NYSDOT). In the NYSDOT framework, in order to qualify for a national interest waiver, an applicant had to show that their work was of “intrinsic merit” and “national importance,” and that they had a record of success in the field. The Dhanasar decision introduced a more flexible and streamlined approach.

The AAO established a three-pronged test in the Matter of Dhanasar:

1. The foreign national’s proposed endeavor has both substantial merit and national importance:

• “Substantial merit” includes any work that contributes to or improves an important factor of life in the U.S. This commonly includes the fields of medical or technological research, national security, renewable (or other) energy, and other STEM (Science, Technology, Engineering, Mathematics) fields. Additionally, it can include endeavors that improve education or cultural understanding. The Dhanasar decision also introduced more flexibility for entrepreneurs to demonstrate their eligibility under this category.
• “National importance” means that the foreign national must demonstrate that their activities and contributions are beneficial to the United States. Put plainly, the foreign national’s contributions are of “significant national importance” to the U.S. economy, culture, or society. Financial and/or economic impact figures from legitimate or reputable sources seem to be key factors that USCIS has been paying more and more attention to lately.
• It is important to point out that although listed as only one prong, it actually has two sub-prongs that must be proven separately. A qualified immigration attorney can advise you further on this particular aspect of an NIW petition.

2. The foreign national is well positioned to advance the proposed endeavor:

• USCIS evaluates the individual’s education, skills, knowledge, record of success, and potential for success in their field. The emphasis is on the individual’s ability to contribute significantly to the proposed endeavor.
• Absent a solid job offer in the field of endeavor (or written evidence of potential employer interest), an individual’s personal statement about their current and proposed endeavors is essential. It is also essential that any recommendation letters speak to the foreign national’s high position or level of expertise to advance the proposed endeavor for the benefit of the U.S.

3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification:

• This criterion involves the USCIS’ broader consideration of the potential benefits of the foreign national’s entry or continued presence in the U.S. in terms of the national interest. It looks at whether the individual’s contributions are significant and of such a high level enough to where it outweighs undergoing the (oftentimes lengthy) labor certification process.
• Satisfying this prong essentially involves reinforcing that the foreign national has met the prior prongs listed above- 1) Their work will be of great value and benefit to the country, having both substantial merit and national importance; 2) fits a position that is in shortage and of need in the U.S.; and 3) that the individual is in a position to succeed in contributing to and advancing the national interests of the United States through their current and proposed endeavor(s).

This framework provides a more flexible approach to evaluating eligibility for national interest waivers and considers the overall impact of an individual’s work in the United States and for its national benefit. It aims to encourage individuals with unique skills and contributions to apply for national interest waivers.

A recent success story involves a non-typical, non-STEM related EB-2 NIW case with Premium Processing. This case was approved within a week with no RFE (Request For Evidence) for a mental health specialist. Her proposed endeavor/personal statement was very detailed about her accomplishments and qualifications, and what she specifically planned to do in the U.S. to improve access to mental health services in underserved and rural areas, and for people of color and other underserved or underrecognized populations in the U.S. She did not have the “typical” NIW qualifications of published scholarly papers with numerous citations or any of the characteristic NIW criteria that usually scientists, researchers, or professors need to meet. What this individual had was proof of a history of high accomplishments and certifications in her field, and a very well-worded and to-the-point personal statement/proposed endeavor, along with strong recommendation/testimonial letters. In addition to all of this, she was able to provide widely respected and USCIS-acknowledged articles and reports on the economic benefits of addressing this U.S. national need in that area, and figures of the economic detriment if it is not adequately addressed. USCIS has been trending towards wanting concrete and reputable economic/financial figures to show national benefit and importance.

Our recommendations for a strong NIW petition:

1. Clearly define and explain your field of expertise: It is critical to clearly define your field of expertise. Provide a concise and compelling description of your work, emphasizing its relevance and importance.
2. Showcase significant contributions: Highlight specific projects, research, or innovations that showcase the impact of your work. Use quantifiable metrics to demonstrate the significance of your contributions within your field.
3. Describe how your work aligns with U.S. National Interests: Articulate how your work aligns with the national interests of the United States. Whether it’s contributing to economic growth, advancing technology, or addressing critical issues, make a compelling case for the broader benefit with corroborating evidence. This is essentially what your personal statement/proposed endeavor should be about.
4. Highlight the uniqueness of your work: Clearly demonstrate the uniqueness of your skills and expertise. Showcase how your contributions are distinct and not readily available within the U.S. labor market. If you can provide comparisons to others of your position in the field at your age, that is beneficial for your case.
5. Strong and meaningful letters of recommendation: Obtain strong letters of recommendation from reputable sources within your field. These letters should highlight the impact and significance of your work, emphasizing its national importance. If possible, it is also strongly beneficial for the recommender to state how they have used or cited your work or innovations/accomplishments in their own work.
6. Emphasize collaboration and networking: Highlight collaborations with U.S. entities such as universities, government or research institutions, or companies. Showcasing partnerships, collaborations, or government funding strengthens your case by demonstrating your integral part of the U.S. professional community.
7. Labor Certification Waiver: It is vital to address the labor certification waiver requirement. Clearly articulate why your case warrants an exemption, emphasizing the unique and irreplaceable nature of your contributions.
8. Also, mention future impact of your work: Outline how your continued and future presence in the U.S. will lead to future contributions that align with the national interest. Discuss upcoming projects, collaborations, or initiatives that demonstrate your commitment to make ongoing and impactful contributions. If currently in the U.S., emphasize your key current contributions, while mentioning how these contributions will continue to benefit the interests of the U.S.
9. Financial and economic impact figures: Find reputable studies or articles that quantify the impact that your current and/or future contributions will make to U.S. national interests.
10. Ensure your petition is legally sound: Seek the assistance of qualified immigration attorneys to review your background and supporting documentation, so that the best possible case can be presented on your behalf.

A successful NIW petition requires meticulous documentation, a clear alignment with U.S. national interests, and a compelling case for the uniqueness and impact of your contributions. There are no shortcuts.

Learn about how to use EB-2 NIW self-petition in this guide!

For more general information on NIW petitions, it’s best to schedule a consultation with our immigration attorney team today!