Understanding the New Criteria for National Interest Waiver (NIW)

 

A National Interest Waiver (NIW) falls in the employment-based, second-preference (EB-2) immigration category. Generally, EB-2 petitions require a full-time job offer and an approved labor certification (so-called “LC”) from a U.S. employer. However, these requirements are waived for the NIW, thus allowing a petitioner/applicant to apply for a green card without a job offer or an approved labor certification from a U.S. employer.

The key approval criteria to determine whether to grant a green card to the petitioner is based on whether the petitioner can significantly contribute to the national interest of the U.S. Until the 2016 DHANASAR ruling, the USCIS made their determination based on the 1998 NYSDOT decision. The new DHANASAR verdict opened the doors for a wider pool of petitioners to benefit from the NIW by clarifying the meaning of what is “beneficial to the national interest of the U.S.” and by extending discretion to exempt the requirements of the labor certification.

 

 

 

 

 

According to the DHANASAR’s ruling, a NIW petitioner can be granted for a green card if the following three factors are shown. Firstly, the petitioner must have a significant advantage in the endeavor that the petitioner is pursuing in his or her field of specialization and be able to contribute to the national interest. For example, if you are a researcher in a science field, your research should be able to make an impact and thereby make a significant contribution to the U.S. people or society.

 

In the past, it was not easy to prove the criteria of being “helpful to the national interest” in the context of the business or education sectors, as the degree to which such a criteria was held to be measured against an entire national scale. However, the ruling stated that the degree to which someone could contribute to the national interest was not measured against an entire national scale, but rather, even to a certain portion of the nation, such as a particular economically depressed region. This can be seen as a broadening of the criteria’s scope.

 

Secondly, it is not necessary to prove that the petitioner’s efforts will be 100% successful. Rather, it is sufficient to show that the petitioner is in a position to be successful in his efforts to contribute to the national interest. This is due to the fact that no matter how great a plan is, it is of no use if the petitioner does not have the ability to succeed or is not in a position to succeed. Documents that may prove this second factor include the petitioner’s personal statement, a reference’s testimony, or documents evidencing that the petitioner has already achieved similar accomplishments.

 

Thirdly, in terms of considering the importance of protecting the national workforce, the petitioner has to show that the job offer and labor certification (LC) exemptions were beneficial to the U.S. This is a much more relaxed condition than that in the past. In the past, the petitioner had to show that there would be no negative impact on the U.S. workforce in order to waive the labor certification requirement.

 

These changes have created an environment in which more people can benefit from the NIW. Therefore, under the Trump Administration where employment-based and family-based immigration is becoming increasingly difficult, the NIW has become a viable immigration option that should definitely be considered.

 

Should you have any questions related to NIW or any other immigration matters, please email us at immigration@songlawfirm.com or is not in a position to succeed. Documents that may prove this second factor include the petitioner’s personal statement, a reference’s testimony, or documents evidencing that the petitioner has already achieved similar accomplishments.

 

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