The National Interest Waiver Program

***The National Interest Waiver Rules have been updated since this article was written. Please see A Step in the Right Direction for the National Interest Waiver for more information.***

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June 30, 2011

Normally, individuals who try to get green cards through employment need to go through the often lengthy and difficult process of labor certification. This process requires first that the foreign national (the employee) have an employer who is willing to take up the responsibility of sponsoring the foreign national and pay for a large portion of the costs. The process also requires that the employer advertise the position in a variety of media to see if there are any qualified Americans who may want the job. If there are, the case cannot proceed.

One of the ways to avoid labor certification for Second Preference cases is through the "National Interest Waiver" (NIW) program. This program is a way for certain individuals possessing exceptional ability in the sciences, arts or business to immigrate to the US without having to go through labor certification and without requiring employer sponsorship.

The purpose of the NIW program is to provide a "short-cut" for individuals who have exceptional ability, who work in a field of "substantial intrinsic merit" and whose work will be providing a benefit to the country as a whole (rather than just a local community, state or region for example). The principal criteria, therefore are that

the applicant has "exceptional ability in the sciences, arts or business,"
the applicant seeks employment in an area of substantial intrinsic merit,
the benefit will be national in scope, and
the national interest would be adversely affected if a labor certification were required.

The foreign national may "self-petition" meaning that he/she rather than an employer signs the I-140 petition on his/her own behalf. An employer is not required to "sponsor" the foreign national or sign the petition. (However, keep in mind that proof of employment in the field is a big part of proving eligibility for NIW).

What is "exceptional ability"?

Exceptional ability means "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business" in the language of the regulation.

The regulation lists the types of evidence necessary to prove exceptional ability, and states that the applicant must have at least 3 of them:

relevant degree, certificate or similar award from an institution of learning;
letters from current and former employers showing at least 10 years of full-time experience in the field;
relevant license or certification;
evidence of salary or other remuneration indicating exceptional ability;
evidence of membership in professional associations; and/or
evidence of recognition for achievements and/or significant contributions by peers, governmental entities, or business/professional organizations;

If these standard do not readily apply, the regulation allows the applicant to show "other comparable evidence" to establish he/she has exceptional ability.

What is an area of "substantial intrinsic merit"?

Some of the areas that have been determined to be areas of substantial intrinsic merit include:

improving the US economy,
improving wages and working conditions for US workers,
improving education and programs for US children and underqualified workers,
improving healthcare,
providing more affordable housing,
improving the US environment and making more productive use of natural resources, and
interested government agency request.

In practice, substantial intrinsic merit has been found in fields ranging from coaching to medical research to television reporting.

What is a benefit that is national in scope?

The benefit must to the country as a whole, rather than a locality, state, region, etc. In other words, there must be an appreciable impact on the national economy, society, etc. So, for example, a special education teacher, although working in a field that probably has a great deal of "substantial intrinsic merit," does not really provide a benefit that is national in scope. Rather, the benefit is primarily limited to the community in which he/she is working. Therefore, it is likely that type of position would not qualify for the NIW program. On the other hand, a researcher in the field of special education who publishes his/her studies to a national audience of education researchers, would be more likely to meet the "national in scope" criterion.

How may one determine if the national interest would be adversely affected if a labor certification were required?

This criterion is a bit more difficult than the previous two, in that it really requires looking at two other questions:

would the foreign national’s services serve the national interest to a substantially greater degree than would an available US worker having the same minimum qualifications?, and
does the foreign national demonstrate such service by a record of achievements with some degree of influence on the field as a whole?

The answer to both questions must be "yes" for the case to be approved.

To succeed with the first question, it is necessary to show that the foreign national is not only more qualified than the majority of Americans working in that same type of position, but that he/she is at the top of his/her field.To succeed with the second question, it is necessary to show that the foreign national has had a track record of success in the field, and has had a degree of influence on his/her field as a whole. (It should be clear that these two questions are really inter-related, since it is difficult to prove the likelihood of future success without showing a track record of past success).

Taking the special education researcher example again, it would be necessary to show that he/she is at the top of his/her focus of research (this does not require that he/she be the top special education researcher, but he/she must be at the top of his/her particular subset of focus in special education), and that he/she has had a demonstrated track record of success with his/her research influencing other researchers in that field.

How is it possible to prove all these things?

Typically, the core of evidence for NIW cases is the "expert opinion letters" provided by experts in the field that support the argument that the foreign national meets all these criteria. Although there is no minimum number of letters, generally speaking the more the better. A good rule of thumb is no less than 10, but some cases may require more.

While it is very likely that a good portion of these letters will come from former or current co-workers and/or supervisors, it is important to know that USCIS will give much more weight to letters from those who do not know the foreign national personally, as these are more likely to represent unbiased opinions. USCIS may even request additional letters from "unbiased" experts if there are too few in the initial submission. Since the evidence that is submitted must closely address each criteria for NIW eligibility, it is important that the letters speak to each factor in turn (or as many as relevant for the expert).

Other forms of evidence include proof of an advanced degree in the field; salary commensurate with position; awards or prizes; merit-based association or society memberships; published materials in professional publications written by others about the foreign national; participation as a judge of the work of others in the same or similar field; original scientific or scholarly contributions; and/or authorship of scholarly books or articles in scholarly journals with international circulation.

Of course, there are many more details involved in getting an NIW case approved, but this has given you a nutshell version of what the program entails. We have successfully handled many NIW cases, and would be more than happy to discuss this further if you feel you may be eligible.

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