How to qualify for National Interest Waiver

The EB-2 National Interest Waiver is different from any other EB-2 visa in that the government waives the requirement for employment certification. However, to be eligible for this green card, the petitioner needs to prove their work is in the national interest. In this article, you can learn how to qualify for National Interest Waiver.

What is national interest?

The regulations do not define national interest. Instead, there were two USCIS decisions that explain what it is and created precedent.

The Matter of Dhanasar (check the full text here) from December 2016 is one of them. This decision clarifies many aspects of a previous case from 1998 that had been used as a reference.

The Matter of Dhanasar establishes three requirements or prongs for National Interest:

1. The endeavor has substantial merit and national importance 

What does endeavor mean to USCIS?

Substantial merit: a broad term

Substantial merit is a broad term that can mean a lot of things. It can mean that the work of the petitioner’s endeavor can improve infrastructure, design medical devices, or create sustainable products…anything that can be described as having intrinsic merit. Consequently, this is a very wide and generic requirement. Merit can be demonstrated in areas such as science, business, entrepreneurship, health, education, technology, or culture, among others.

National importance: prove that the endeavor is relevant to the US as a whole

On the other hand, national importance is a little bit more restrictive. It means that the petitioner’s endeavor aligns with one or more goals of the United States. It does not necessarily mean that the endeavor applies to all 50 states, but it may be easier to argue if it is not geographically limited.

For example, the reduction of pollution levels is a goal that aligns with US climate goals and is not limited to a specific area in the country. In other words, it may affect the whole country positively. Conversely, the design of better snow blowers may only benefit certain areas of the country where the weather is colder and it snows. 

However, the angle of the story may affect the interpretation of its national importance. In the case above, one can argue that more efficient snow blowers reduce carbon emissions. Therefore, the United States as a whole benefits from it, and the endeavor may align with a climate goal. In summary, the story and the presentation matter! The applicant puts together this story in the petition cover letter. This is a key part of the petition and essential to prove you qualify for National Interest Waiver.

Tools to help you establish National Importance

• Congress.gov bill search : This is a search engine from the US Congress where you can find congressional records, bills, laws… you can type your endeavor and try to find evidence that shows that there is interest in Congress for this topic to be advanced.
• White House website: You can also go to the executive branch’s site and find evidence there showing that your work is aligned with the priorities of the government. Under Biden’s administration there is a specific section called “Priorities” that could help you. You can also go to the Briefing Room and use the search bar to find WH press releases that can help support your case.
• O*Net Online Bright Outlook Occupations: This is a website by the Department of Labor that lists occupations in high demand. It can help you establish that there is a need for your profession. However, keep in mind that a shortage of workers is not, in itself, a qualifying reason for NIW.
• Scientific literature: Find evidence in scientific journals showing that a problem you can help solve is a national or international issue. You can find information on platforms such as Google Scholar although sometimes articles are behind paywalls.

2. The petitioner is well positioned to advance the endeavor.

The person needs to demonstrate that he or she has the skills and a proven record of success in the field. To prove this, the petitioner can obtain letters of recommendation from experts in the field. Additionally, peer-reviewed publications (and their citations) and invention disclosures and patents can constitute evidence. Furthermore, coverage in national or international newspapers, magazines, or any type of publication may strengthen the case.

In addition, the person needs to prove that they have a plan to advance the endeavor. Moreover, they have to demonstrate that they have made progress towards it and that they have the necessary support. In this context, support can mean personal or financial support. This is important because Dhanasar opened the door to entrepreneurs.

Types of evidence that you can use to prove you are well positioned to advance the endeavor

Below is a list of types of evidence that can show a person is well positioned to advance a proposed endeavor. It is not meant to be an exhaustive list, and other evidence can be used as well. This list comes from a policy manual from the USCIS.

• Degrees, certificates, or licenses in the field;

• Patents, trademarks, or copyrights developed by the person;

• Letters from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well positioned to advance the person’s endeavor;

• Published articles or media reports about the person’s achievements or current work;

• Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work;

• Evidence that the person’s work has influenced the field of endeavor;

• A plan describing how the person intends to continue the proposed work in the United States;

• A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;

• Correspondence from prospective or potential employers, clients, or customers;

• Documentation reflecting feasible plans for financial support;

• Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;

• Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;

• Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor; 

• Evidence that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and

Evidence demonstrating how the person’s work is being used by others

• • Contracts with companies using products that the person developed or assisted in developing;

  • Documents showing technology that the person invented, or contributed to inventing, and how others use that technology; and

  • Patents or licenses for innovations the person developed with documentation showing why the patent or license is significant to the field.

3. On balance, it would be beneficial to the US to waive the labor certification for the EB-2 category

In summary, this means that it is clear that there are enough reasons to “forgive” the first step of the green card process (labor certification). Therefore, there is no need for employer sponsorship. In other words, even if there is a US person ready to do the job the United States will still benefit from the foreigner doing that job.

The petitioner may submit evidence related to one or more of the factors below. These come from the Matter of Dhanasar and USCIS outlines them again in their policy manual.

• The impracticality of a labor certification application;

• The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and

• The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.

More specific considerations may include:

• Whether urgency, such as public health or safety, warrants foregoing the labor certification process;

• Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification;

• Whether the person’s endeavor has the potential to generate considerable revenue consistently, for example, with economic revitalization; and

• Whether the person’s endeavor may lead to potential job creation.

Is NIW the same as EB-2?

NIW, or National Interest Waiver, is a sub-category within the EB-2 green cards. The EB-2 category is for individuals with an advanced degree or exceptional ability. Under the NIW sub-category, the petitioner needs to meet a higher bar than in a regular EB-2 submission. In return, NIW does not require sponsorship from employers and the individual may self-petition. In addition to the advanced degree or exceptional ability, the petitioner has to demonstrate that their endeavor is of substantial merit and it benefits the US, among others. 

To apply for a regular EB-2 green card, the petitioner must have an employer sponsoring the application. In fact, the first step of the process, before submitting an I-140 form, is to request a permanent labor certification from the US Department of Labor. With this certification, the employer can then sponsor the I-140 petition.

Under the NIW sub-category, however, the individual can self-petition and does not need an employer sponsoring them. In other words, the government does not require a labor certification. Although this is clearly a benefit from NIW with respect to regular EB-2, the NIW applicant must provide additional evidence to justify the waiver of the labor certification.

Takeaways

In this article we review how to qualify for National Interest Waiver. National Interest is somewhat subjective, but the Matter of Dhanasar clarified what it means for USCIS. Some areas are open to interpretation and that is the reason why telling a good story is key to the success of your EB-2 NIW petition. Your cover letter will be the piece of the I-140 petition that will help you tell that story to the USCIS officer. If you want to see how I wrote my own cover letter and how to qualify for National Interest Waiver, go to the Downloads page and get a copy!