National Interest Waivers (NIWs) are quite popular among Ph.D. students, researchers, postdoctors and other advanced degree professionals. A national interest waiver is a means of obtaining permanent residency on the basis of one’s employment. Specifically, if an NIW is granted, the job-offer and labor certification requirement of a typical employment-based immigrant petition is waived. Those granted an NIW may adjust their status or obtain permanent resident visas without being bound by any particular employer. For more on NIW, please click here.
As with other employment-based immigrant petitions (Form I-140), an NIW petition is filed with one of the USCIS’s (formerly INS) regional service centers. The service centers are named for the states in which they are located, namely the Vermont Service Center (VSC), the Nebraska Service Center (NSC), the California Service Center (CSC), and the Texas Service Center (TSC). The service center a particular petition should go to is determined based on where the alien seeking permanent residency will be working. However, since people who are granted NIWs do not need to have a sponsoring employer, their petition should be sent to the service center for the state in which they live.
The Texas Service Center (TSC) handles NIW petitions for petitioners in the following states: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, South Carolina, Oklahoma, Tennessee, and Texas. Recently, the TSC has issued several Requests for Evidence (RFEs) regarding pending NIW petitions indicating that the TSC may be raising or tightening its standards in evaluating this kind of petition.
Notably, the TSC has been requesting evidence of “how the beneficiary is the head of the project or a critical member.” The RFEs specify that this may be proved by “funding documents from the government agency or major scientific organization, showing where the beneficiary is listed as the principal investigator.” While it is a reasonable interpretation of the standards for evaluating NIW petitions that a person who qualifies for an NIW should play are critical role in the work he or she is/will be doing, requiring the person to be the head or principal investigator, is certainly beyond what should be expected of an NIW alien. This is especially true considering the fact that such status is seldom given to anyone who is not a U.S. citizen or permanent resident.
Another peculiar request in recent RFEs is that the alien should show
signs that he/she has received “critical acclaim”. Again
“critical acclaim” is not a requirement for an NIW. While
critical acclaim can be used to show the significance of an NIW petitioner’s
abilities and accomplishments. It is not the sole means for proving
such a fact. Indeed, “critical acclaim” is typically used
as evidence that someone qualifies under the higher category of “Alien
of Extraordinary Ability”. “Alien of Extraordinary Ability”
is the highest possible employment-based immigrant category. It is classified
in the first or top preference (EB-1). Technically, an NIW petition
is a petition in the second preference (EB-2). Logically, to qualify
for an NIW one should not have to meet all of the requirements of the
“Alien of Extraordinary Ability” standard. Further, the
NIW standards are supposed to be flexible. Thus requiring specific types
of evidence is inappropriate, where a petitioner may show that he/she
meets the standards with a different kind of evidence.
These recent developments make the services of an experienced and competent attorney all the more valuable. In circumstances like this, it may not be enough to simply know the formal requirements for a particular immigrant classification. Rather, Z&A attorneys, with their extensive experience in handling NIW petitions together with their well-honed talents in the art of persuasion, can understand the subtle nuances of the law and craft convincing arguments that their client’s case meets the legal standard.
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