Citations:

• Immigration and Nationality Act (INA) §203(b)(2)(B)
• 8 USC §1153(b)(2)(B)
• 8 CFR § 204.5(k) et. seq.
• Adjudicator’s Field Manual (AFM) 22.2(j)(4)
• Matter of New York State Dep’t of Transportation (NYSDOT), 22 I&N Dec. 215

The National Interest Waiver (NIW) is a sub-category of the Employment-Based (EB) 2^nd preference immigration category.  The EB-2 category allocates immigrant visas (i.e., grants of Lawful Permanent Resident (LPR) status, aka green cards) at an annual level equivalent to 28.6% of all worldwide immigrant visas (approx. 40,000 per year), plus any unused immigrant visas from the EB-1 category.  EB-2 is generally reserved for “members of the professions holding advanced degrees” or persons of “exceptional ability” (as opposed to the more stringent “extraordinary ability” requirement for the EB-1 category).

There are two significant differences between the EB-1 and EB-2 categories.  First, qualifying foreign workers may self-petition for LPR status in the EB-1 category – that is, petition for LPR status without a standing job offer from a U.S. employer – if claiming eligibility as a person of extraordinary ability, or as a multinational executive or manager.  Workers in the third EB-1 sub-category, outstanding professors or researchers, must have a tenure or tenure track offer from a university or institute of higher education, or a private employer actively engaged in the research, thus may not self-petition.

A foreign worker may not self-petition for LPR status without a job offer in the EB-2 category, unless they qualify in the EB-2 sub-category for a National Interest Waiver.

Second, all foreign workers in the EB-1 category, including professors or researchers, are exempt from the requirement to demonstrate a shortage of qualified U.S. workers in the field of endeavor (also known as “labor certification”).  Alternatively, EB-2 workers are required to undergo labor certification to demonstrate a shortage of qualified U.S. workers in field, unless they qualify in the EB-2 sub-category for a National Interest Waiver. 

The National Interest Waiver (NIW) is thus an appealing option for many foreign professional workers who wish to immigrate to the United States and who otherwise do not qualify for the EB-1 category, who do not possess family-based immigration alternatives, or who do not have a standing, permanent job offer from a U.S. employer.

Evidentiary criteria

The threshold criteria, as set forth in the seminal case of Matter of New York State Dep’t of Transportation (NYSDOT), 22 I&N Dec. 215, are as follows.  (The Administrative Appeals Office (AAO), an adjudicatory body that rules on appeals of denied employment-based immigration petitions, has upheld these criteria.)  The following factors must be considered when evaluating a request for a NIW:

1. The person seeks employment in an area of substantial intrinsic merit. The importance of the occupation or the field of endeavor is a threshold requirement.  AAO cases have demonstrated that if a particular field of endeavor is related to an important national goal, this requirement has not been difficult to meet. The national interest can be served by cultural means, as well by “means more directly linked to economic pr physical well-being.”  The AAO has yet to deny a case solely for failure to meet the “substantial intrinsic merit” prong of the test.
2. The benefit will be national in scope. The emphasis of this factor is on the existence of a national goal that the petitioner’s proposed undertaking will promote.  Merely serving a regional, local or private interest is not sufficient.  However, the correlation between the national goal and the petitioner’s activity need not be direct.  The argument that, via interstate commerce, the petitioner’s work in a local region has a nexus to the nation as a whole, has been demonstrated to be a prevailing argument.
3. The national interest would be adversely affected if labor certification were required. AAO decisions on NIW cases clearly demonstrate that this third prong is the most important standard to meet.  The benefit derived from the petitioner’s participation in the national interest field of endeavor must considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.  The petitioner must present strong countervailing evidence that the strong national interest in protecting U.S. workers is outweighed by the significant benefit the petitioner proposes to bring to the field of endeavor.

In refining the third prong above, the AAO has analyzed the following factors in post-NYSDOT cases:

• The petitioner’s standing in the field. Evidence must be submitted regarding the petitioner’s relative standing in the field, and the evidence must establish that he or she is superior to other individuals in the field.  Merely focusing on the importance of the field is not enough.  The petitioner must demonstrate that they are superior in their work in that field of endeavor, typically with peer or expert testimonials, publications, awards or other evidence of advanced and recognized work in the field.
• The minimum education, experience and training required to perform the service in question. If persons with less education, training or experience may adequately perform the job duties for the position, the petitioner’s superior qualifications may be discounted even if the credentials clearly place the petitioner atop his or her field.  In essence, the position to be filled by the petitioner must require the services of a person with the petitioner’s superior or unique credentials.
• The quality of the evidence.  Qualifications of peers or experts submitting testimonials or reference letters on the petitioner’s behalf matter greatly.  Generally, testimonials or reference letters from individuals recognized as authorities or experts in the field, submitted as evidence of the national interest in granting LPR status to the petitioner to continue work in the field, are given greater weight.