Frequently Asked Questions about NIW

Q: What is USCIS?

A: USCIS stands for U.S. Citizenship and Immigration Services. It is the agency of the U.S. government principally responsible in matters dealing with aliens in the United States. This includes giving it jurisdiction over immigrant petitions, such as NIW. Prior to March of 2003, the USCIS was called the Immigration and Naturalization Service (INS). For a brief period it was known as the Bureau of Citizenship and Immigration Services (BCIS). It is also sometimes simply called CIS. For purposes of this web site, we use the current accepted name of U.S. Citizenship and Immigration Services or USCIS.

Q: What is a National Interest Waiver (NIW)?

A: A National Interest Waiver (NIW) petition requests that the otherwise required U.S. job offer requirement be waived for the sake of the "national interest".

Q: What are the minimum requirements to apply for an NIW?

A: Since this is an employment based second preference petition, the beneficiary of an NIW must qualify as either an "Advanced Degree Professional" or an "Alien of Exceptional Ability".

Q: What is an Advanced Degree Professional?

A: The term "Advanced Degree Professional" means that the beneficiary either has an advanced degree (M.A., M.S., M.E., M.D. or Ph.D.) or its foreign equivalent, and is working in an area that requires at least a Bachelor's degree or is traditionally regarded as a profession, such as a lawyer, doctor, architect, engineer, or teacher. A Bachelor's degree plus five years' experience in a professional or progressive occupation may also satisfy the qualification requirement of an "advanced degree".

Q: What is an Alien of Exceptional Ability?

A: The term "Alien of Exceptional Ability", according to USCIS regulations, means an alien who demonstrates exceptional ability in the sciences, arts, or business, through at least three (3) of the following:

  • An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  • Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
  • A license to practice the profession or certification for a particular profession or occupation;
  • Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
  • Evidence of membership in professional associations; and/or
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Please keep in mind that beneficiaries holding an advanced degree from a U.S. university or foreign equivalent need not prove to qualify as an "Alien of Exceptional Ability".

Q: To apply for an NIW, do I have to be both an Advanced Degree Professional and Alien of Exceptional Ability?

A: No, the alien only needs to satisfy either the "Advanced Degree Professional" or the "Exceptional Ability" requirement. Proof of both is unnecessary. Please note that this fulfills the minimum requirements, which allows the NIW case to be considered. It does not guarantee a successful NIW case.

Q: What documents are required for NIW petitions?

A: Documents for an NIW petition consist of the U.S Citizenship & Immigration Services (USCIS) form I-140 and the Department of Labor form ETA-750B. Additionally, documents supporting that the beneficiary is an "Advanced Degree Professional" or an "Exceptional Ability Alien" should be provided. There are no other required specific documents according to USCIS laws and regulations. Letters of Recommendation from prominent members of your field as well as a strong petitioning letter drafted by an experienced immigration attorney are recommended.

Once again, satisfying the minimum documentary requirements only allows the candidate's petition to be reviewed and does not guarantee a successful case.

Q: What is the NIW standard under current U.S. immigration statutes?

A: The 1990 law provides that "Advanced Degree Professionals", or persons of "Exceptional Ability", whose work would substantially benefit the national interests of the U.S. would be exempted from the labor certification requirement, if this would be in the "national interest" of the U.S. What constitutes 'national interest', however, is not defined under the Statute.

The relevant statute, 8 U.S.C. § 1153(b)(i), states:

'The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.'

NOTE: When this law was issued in 1990, these petitions were handled by the Immigration and Naturalization Service (INS), which was a part of the U.S. Department of Justice, whose head is the Attorney General. That is why this authority was given to the Attorney General. Now the responsibilities and powers of the Attorney General in this regard have been transferred to the U.S. Department of Homeland Security, and the Immigration and Naturalization Service (INS) that is now a part of that department has changed its name to the U.S. Citizenship and Immigration Services (USCIS).

Q: How does USCIS determine its decisions regarding NIW cases?

A: Before August 1998, the USCIS (then called the Immigration and Naturalization Service (INS)) took a liberal stance in deciding NIW cases. However, the decision in “New York State Department of Transportation” on August 7, 1998 by the Administrative Appeal Unit of the USCIS tightened the standard applied to NIW cases.

The following three factors are considered in determining whether an alien will substantially benefit the national interests of the United States:

  • It must be shown that the alien seeks employment in an area of substantial intrinsic merit;
  • It must be shown that the proposed benefit will be national in scope. This means that the alien's perspective contribution will bring benefits not to a limited region in the U.S., but rather provide benefits that impact on a national scale; and
  • The petitioner seeking the waiver must satisfactorily demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. It must be shown by the petitioner that it would be contrary to national interest to deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.

The Labor Certification process exists to protect the jobs and job opportunities of U.S. workers having the same minimum qualifications as an alien seeking employment in the national interest. The petitioner, whether the U.S.—employer or the alien—must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Of these criterions, the first is most basic in proving. Nearly all jobs provide intrinsic value to the national interest. Moreover, the majority can be applied to a national scale. For example, although the alien in question in the New York Transportation case worked exclusively on New York bridges, it was successfully argued that his work affected the national transportation grid as many interstate travelers used New York state bridges. However, successfully demonstrating that national interest is adversely affected by requiring the standard job certification process can be troublesome. Thus, it behooves NIW petitioners to consult an experienced immigration attorney.

Q: How does one establish prospective national benefit?

A: While the national interest waiver hinges on prospective national benefits, the alien's past record should justify and clearly establish likelihood of projected national future benefits.

Q: What distinguishes a successful NIW from an unsuccessful NIW?

A: There is no specific line that distinguishes a successful NIW petition from an unsuccessful one. The petitioner has the burden of proof to provide sufficient evidence to show that he or she meets the requirements for a National Interest Waiver. However, the stronger letters of recommendation and attorney petition letter presented, the more your chances of approval improve.

Q: How important are useful skills or a unique background?

A: It is not sufficient to state that the alien possesses useful skills or a unique background. Regardless of the alien's unique experience or skills, the benefit the alien's skills or background will provide to the United States must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.

Q: Who has the burden of proof in showing national interest?

A: The burden of proof in NIW cases rests solely on the petitioner and his/her attorney.

Q: Can a Ph.D. student apply for a NIW petition?

A: Yes. Since a job offer is not required, a Ph.D. student may qualify for an NIW petition.

Example:
Jane has an M.S. degree in biology but does not have a Ph.D. Can she apply for an NIW petition? Yes, an M.S. in biology meets the minimum requirements of an "Advanced Degree Professional".

Example:
John does not have a U.S. degree, but has a Master's Degree awarded from China, his home country. Is a foreign advanced degree considered for NIW petitions? Yes, a foreign advanced degree, if determined to be equivalent to a U.S. advanced degree, meets the NIW's advanced degree minimum requirements.

Q: How many publications are required to meet minimum NIW requirements?

A: There is no minimum publication requirement. USCIS decides each petition on a case-by-case basis.

Q: Would evidence of a labor shortage in the NIW beneficiary's profession be a factor?

A: No. The New York Transportation Case explicitly excludes labor shortages from being considered as a factor in waiving the job offer and labor certification requirement.

Q: Besides NIWs, what other avenues exist to apply for an employment-based immigration petition without the necessity of a labor certification?

A: If you qualify for an employment-based, first preference petition, you do not need a labor certification. Within the first preference category, if you qualify as an "Alien of Extraordinary Abilities", you also do not need a job offer. For more information on the EB-1 preference category, please click here.

Q: Do I need to live within the U.S. to obtain an NIW?

A: No, an alien may reside either within the U.S. or in a foreign country and apply for an NIW. However, your NIW claim will be more difficult to establish if you are living outside the U.S.

Q: What is a letter of recommendation?

A: A letter of recommendation is a letter written by an expert in the alien's field or some otherwise authoritative person in an allied or supported field. The letter discusses the abilities and accomplishments of the alien seeking an NIW as well as the importance of the alien's work to the national interest. Letters of recommendation are an important part of an NIW petition.

Q: Whom should I contact to obtain letters of recommendation?

A: Letters of recommendation can be obtained from various sources. Generally, one would need to obtain recommendations from experts within your respective field stating that you have made a significant contribution to your field and have achieved a degree of recognition.

Other examples may include top-level management of prospective companies making use of the alien's work, and current and former employers. It is recommended that you include letters from those who have not worked personally with you but are still aware of your achievements since such letters are generally given more weight than those obtained from people who know you well.

Q: How many letters of recommendation is necessary for a successful NIW petition?

A: There is no required minimum number of letters of recommendation set forth by USCIS. Generally, we include five to seven letters of recommendation in our NIW applications.

Q: How strong must the letters of recommendation be?

A: The stronger the better. Preferably, the letters will enthusiastically extol the alien's abilities, talents, and accomplishments as well as the prospective benefits to be gained from the alien's work. Because the viability of the petition is largely dependent on the strength of these letters, having an experienced attorney's assistance during a petition’s preparation is an important factor in whether an NIW petition will ultimately be approved or denied.

Q: Does your firm provide sample letters of recommendation?

A: Yes, we provide our clients with a relevant sample recommendation letter to use as a reference from our sample database which includes letters from a wide range of areas, including chemistry, physics, arts, medical research, petroleum engineering, and music.

Q: If my boss is not willing to write a strong letter of recommendation for me, may I still obtain approval of an NIW petition?

A: It is not necessary to obtain a strong letter of recommendation from your current employer to have a successful NIW petition, although you should get such a letter if your employer is willing to provide one. If you obtain letters of recommendation from other experts to support an NIW claim, your case may be successful.

Q: Does an artist or musician qualify for an NIW?

A: Yes. Artists and musicians may apply for an NIW.

Q: If I do not have any published articles in journals in my field, may I still apply for an NIW?

A: Yes. There is no specific requirement that you need to have published articles in order to apply for or obtain approval of an NIW petition. However, having published articles could make an NIW petition stronger.

Q: If I do not have any awards relevant to my field, may I still apply for an NIW?

A: Yes. There is no specific requirement that you need to have awards in order to apply for or obtain approval of an NIW petition. However, having awards could make an NIW petition stronger.

Q: If I am not a member of a professional organization in my field, may I still apply for an NIW?

A: Yes. There is no specific requirement that you need to be a member of any professional organization, association, or society in order to apply for or obtain approval of an NIW petition. However, being a member of a professional organization, association, or society could make an NIW petition stronger.

Q: I am not a member of any professional organizations in my field, but may join by paying a membership fee. Should I join the professional associations now in order to increase my chances of approval for an NIW?

A: Not necessarily. Being a member of a professional organization, association, or society can help a petition if the organization's membership is restricted to those who somehow distinguish themselves in their field. If the professional association is relatively easy to join, it may not be a factor in your NIW case.

Q: I am considering applying under an EB-1 classification. May I also apply for an NIW?

A: Yes. You are not bound by only one immigrant petition (Form I-140). You may petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether the USCIS will approve any given case.

Q: If I have already applied under another classification, is there any reason for me to try for an NIW?

A: Yes. You may want to apply for an NIW to improve your chances of getting a petition approved. It is impossible to predict whether the USCIS will approve any given case. If the other case is eventually denied, you may still get the NIW petition approved. In addition, some types of petitions require an employer sponsor and anyone approved under such a petition would be required to work for that employer for at least some time after the immigrant petition is approved. An NIW requires no employer sponsor, so an alien approved under an NIW will not be bound to any particular employer.

Q: If I apply for an EB-1 and an NIW at the same time, is there any negative effect between the two petitions?

A: No, they are unrelated. One will not affect the other.

Q: Between an NIW and an EB-1(a), which petition is recommended?

A: You should always keep in mind that filing both an NIW and an EB-1(a) petition concurrently is an option. However, each case is different. While overall approval rates from USCIS for EB-1(a) petitions tend to be lower, if your case is clearly strong enough, your chances for success are higher by applying for EB-1(a). However, if your case is not as distinguished as successful EB-1(a) cases, a NIW petition would be the most sensible approach.

Q: If I have a Labor Certification pending, may I also apply for an NIW?

A: Yes. A Labor Certification process is done by the U.S. Department of Labor whereas the USCIS handles NIW petitions. If your Labor Certification is ultimately denied, then you still have a chance of getting an NIW approved. Either way, you need to petition for an adjustment of status or apply for an immigrant visa. Moreover, with a Labor Certification, you must petition under the employer who sought the Labor Certification and would be required to work for that employer at least some time after your immigrant petition (Form I-140) is approved. With an NIW you are not bound to remain with any particular employer.

Q: If I have been denied a Labor Certification, may I still petition for an NIW?

A: Yes, assuming you otherwise would qualify for an NIW. The standards for NIWs and Labor Certifications are very different. A Labor Certification is based on a lack of available U.S. workers with minimum qualifications for the particular job. By contrast, an NIW is based on the alien being able to contribute to a greater degree than U.S. workers with minimum qualifications. For example, there could be a multitude of U.S. workers with minimum qualifications available for a particular job, but the alien worker is much better at this particular job than those with minimum qualifications are. Under such a circumstance, a Labor Certification would likely be denied, while an NIW would be more likely to be approved.

Q: What is a "Request for Additional Evidence"?

A: Sometimes the USCIS is not convinced that the alien seeking an NIW has met the burden to prove that he/she qualifies for an NIW. In such cases they will typically submit a "Request for Additional Evidence" seeking certain forms of evidence that the USCIS finds lacking. Z&A takes great pains to present a strong case so that it may be approved without a request for additional evidence. Nevertheless, there is no way to predict how a particular USCIS officer reviewing a particular case will respond, and sometimes even the strongest of cases receive a "request for additional evidence". Even in such situations, our cases are usually approved after we prepare and submit the additional evidence.

Q: You have reviewed my resume and know my background. What is my chance of obtaining an NIW approval?

A: Your chance of success for an NIW approval is not determined solely by your resume and background. Letters of recommendation from various sources play an important role in supporting an NIW claim. Furthermore, a well-drafted petitioning letter from your attorney will greatly strengthen your case. Your chance of success cannot be measured without analyzing all the components of an NIW petition. Even then, the ultimate decision by USCIS review cannot be predicted.

Q: Can Letters of recommendation included in an EB-1 petition be used for an NIW petition?

A: No. EB-1 Letters of Recommendation will not be effective for an NIW petition since an EB-1 and NIW have different criteria.

Q: If I have filed an NIW, when is my priority date?

A: Your priority date is the date that the USCIS receives your NIW petition.

Q: May I apply for a change of status from NIW to F-1 status?

A: Yes, because NIW does not require a specific offer of employment. Thus, many students petition for NIW.

Q: I am in J-1 status and subject to the two-year home country residency requirement. May I apply for an NIW?

A: Yes. However, you need to obtain either a J-1 waiver or satisfy its requirements before you may adjust your status to permanent resident or acquire an immigrant visa.

Q: I am currently in J-1 status and subject to the two-year home country residency requirement. If I apply for a National Interest Waiver and get it approved, is my J-1 home country requirement waived?

A: No, a J-1 waiver and National Interest Waiver are two different things. A J-1 waiver is an application to waive the two-year home country residency requirement. A National Interest Waiver is a waiver of job offer and labor certification requirement incident to an immigration petition. Even if your NIW is approved, you are still subject to the two-year requirement. You need to obtain a J-1 waiver or satisfy the two-year home country residency requirement before you may adjust your status to permanent resident.

Q: If my NIW is approved, may I adjust my status to permanent resident?

A: Generally, yes. It depends on whether an immigrant visa is available for you. For more information on Visa Bulletins, please click here .

Q: May I apply for an Adjustment of Status and file a NIW petition concurrently?

A: Yes, the advantage being quicker adjustment of status with your NIW approval.

Q: How many NIW cases has your firm handled?

A: Our firm has successfully helped many clients obtain NIW approvals. In the past nine years, we have handled over two-thousand NIW petitions. In recent years, we have averaged over four hundred new NIW petitions annually.

Q: Can your firm guarantee that my case will be successful?

A: No, we cannot promise that your case will result in a successful outcome. However, we can promise you that we will take your case as our own, give it the highest priority, and produce first-rate work product.

Q: After my NIW is approved, do I need to remain with my current employer?

A: No, provided you are the petitioner in the NIW petition.

Q: After my NIW is approved, am I required to remain in the same field as my NIW claim?

A: Yes, you are required to continue to work in the field of your NIW claim and benefit the national interest of the U.S. If you venture into another area, the USCIS may deny your Adjustment of Status (I-485) or subsequently revoke your permanent residency.

Q: What is the attorney's fee for an NIW petition?

A: While our attorney's fees are not the lowest available, our fees are warranted. By retaining Z&A, you can be assured of high-quality, efficient work that will greatly improve your chances of success. Your case will be taken as a high priority case; our attorneys will use their experience, expertise, and teamwork to ensure high probability for your NIW petition's approval.

Please click here for more information about our NIW attorney's fees.

Q: What are the differences between an NIW and an EB-1?

A: While there are many similarities between an alien who qualifies for an NIW petition and an EB-1(a) or EB-1(b) petition (EB-1(c) is quite different), the qualifications for each of the different petitions is actually distinct. In an NIW petition, the alien seeks first to show that he/she is a highly qualified individual in his field (i.e. "Advanced Degree Professional" or "Alien of Exceptional Ability"). He/she also claims to have the capacity to contribute to the national interest to a greater degree than other highly qualified individuals in the field. Thus, the waiving of the standard job offer and labor certification requirement is warranted. By contrast a person who qualifies in an EB-1 category must show that he/she is a top or outstanding individual in his/her field. According to U.S. immigration law a top or outstanding individual is not required to get a labor certification to achieve employment based permanent residency. Please click here to learn more about EB-1.

Q: Which service center should I file my NIW petition with?

A: All I-140s for NIW cases should be filed with the Dallas LockBox.

Q: Where are the majority of Z&A NIW petitions filed?

A: The Texas Service Center receives the largest portion of our client's cases; however, we have filed successful cases with all four service centers. Since immigration law is federally uniform, our knowledge is not specific to any particular region, state, or service center. We therefore welcome clients from all regions of the U.S. and the world.

Q: If I retain Z&A, what do I need to do?

A: If you decide to retain us to complete and file your NIW petition, please read a copy of our NIW contract, sign it, and mail it to us, along with a check for $2,500, which consists of the initial attorney's fee. Once we receive the signed completed contract and the check, we will begin work on your case. Please click here for an NIW contract.

Q: If I retain Z&A, how soon can you file my NIW?

A: It depends on how long it takes to gather all the supporting evidence, including letters of recommendation. After you have provided all the accompanying supporting documentation, it usually takes us about one week to complete the petition and prepare it for filing.

Q: How long does it take for the USCIS to process NIW cases?

A: Generally, it takes the USCIS between six months to one year to process an NIW case, but the amount of time for any given case can vary considerably. For more information on processing times, please click here .

Q: Who is handling my case if I retain Z&A?

A: Our attorneys handle their clients' cases individually by preparing petition letters, contacting clients, and following up pending cases. That is why we have more attorneys than clerks. Our clerks' main objective is to help attorneys prepare clients' packages, and each client's package will be reviewed by one of our most experienced attorneys for a final revision before sending out the package to the USCIS.

Q: If I retain Z&A, may I select a specific lawyer for my case?

A: It should not be necessary. All members of our Z&A team are well-experienced lawyers with excellent rates of success. Although your case may be assigned to one particular attorney, other Z&A staff will examine your case. Attorneys are encouraged to share thoughts and information in order to build the strength of their cases. All petitions are examined by a senior attorney prior to filing with the USCIS to ensure accurate, high quality work.

Q: I know your firm has its headquarters in Houston, Texas. I live in another state. Can your firm handle my case?

A: Yes. Z&A is headquartered in Houston, TX, and has branch offices in Chicago, New York, Austin, Los Angeles, Palo Alto, and Seattle , but we handle US immigration cases anywhere within and outside the US by using the latest technology in providing professional services to our clients since immigration is based on federal law. Please click here to see the map of our clients' locations in the United States.

Q: If I retain your firm, do I need to meet in-person with one of the attorneys at Z&A?

A: No, it is not necessary to meet in person for us to handle your case. You may communicate with us via fax, telephone, mail, e-mail, and express mail.

Q: I want your firm to evaluate my case. What do I need to do?

A: To receive your free initial evaluation, please click here .

(Updated 10/8/2012 by AD)

For further information about the National Interest Waiver, please check the other pages about NIW on the site: