In accordance with U.S. Immigration Law, there are certain requirements that must first be met in order for an alien to qualify for a National Interest Waiver. Below is a list of the application requirements and an explanation of each.
At a minimum, to qualify for a National Interest Waiver (NIW) the applicant must hold an advanced degree – (1) an academic or professional U.S. degree above the baccalaureate level, or (2) a foreign degree equivalent that is above the U.S. baccalaureate level.
In the absence of an advanced degree, a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive experience in the alien’s profession is considered the equivalent of a U.S. Master's degree. In the alternative, the applicant may also claim exceptional ability, a degree of expertise significantly above that ordinarily encountered in the alien’s profession.
However, as the Administrative Appeals Office (“AAO,” the appellate body reviewing USCIS decisions) states, whether an alien seeks classification as an alien of exceptional ability or as a member of the professions holding an advanced degree, the alien cannot qualify for an NIW merely by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise.
Instead, specific criteria must also be met to obtain a NIW, which include the following:
In order to qualify for a National Interest Waiver (NIW), an applicant must satisfy the requirements of the three-prong test laid out in New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (“NYSDOT”):
Brief Case Study
In the NYSDOT case, the beneficiary was a civil engineer from India who specialized in bridge engineering projects for NYSDOT. NYSDOT filed an immigrant petition for the engineer requesting a National Interest Waiver. The case appeared to be persuasive; the petition included several testimonials about the beneficiary’s excellent engineering skills and how his expertise was in short supply and was important to the U.S. (given the importance of bridges and their safety). However, USCIS denied the petition, and the AAO denied a subsequent appeal as well.
Several reasons were given as to why the petition was denied. First, according to the AAO, a petitioner cannot establish qualification for an NIW based solely on the importance of the beneficiary's occupation. While the Associate Commissioner acknowledged that engineering is a field of substantial intrinsic merit, this fact alone did not suffice to grant the waiver. Neither did the acceptance by the Associate Commissioner that while the beneficiary's employment was limited to a particular geographic area, New York's bridges and roads connect the state to the national transportation system and hence the prospective benefit was national in scope. The Associate Commissioner summarizes the determinative issue in the case as follows:
“The issue in this case is not whether proper bridge maintenance is in the national interest, but rather whether this particular beneficiary, to a greater extent than U.S. workers having the same minimum qualifications, plays a significant role in the preservation and construction of bridges.”
Finding that the beneficiary did not meet this part of the test, the Associate Commissioner explained, “It cannot suffice to state that the alien possesses useful skills, or a unique background . . . regardless of the alien's particular experience or skills, even assuming they are unique, 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.”
The occupations that qualify for a National Interest Waiver are not defined by statute. However, each of the three prongs mentioned above must be met to qualify for an NIW. The following are more detailed explanations of the three prong requirements:
The overarching conclusion is that the specific details matter and each aspect of the case should be carefully managed to best fit the NYSDOT criteria. A strong case can be denied because of careless presentation of evidence by an attorney or self-petitioner. Take the example below of how an otherwise possibly winnable case was ultimately denied by USCIS and, upon appeal, by the AAO last year.
Another Brief Case Study
The petitioner-beneficiary was a postdoctoral research scholar at the University of Iowa. He subsequently began working at the National Institute of Mental Health (NIMH). Both of these positions to a layperson indicate the beneficiary’s abilities and work in the national interest. However, the case presented to USCIS had several fatal flaws. His lawyer stated to USCIS that "Due to his expertise and exceptional ability in the field . . . he has commanded a salary equal to his level of knowledge," while in actuality he was making a very modest salary. Seven items were listed under publications on the petitioner’s CV, when only two were published. Of the numerous letters of recommendation submitted, the drafting lacked credibility. A Senior Scientific Officer at a pharmaceutical company in India wrote that the petitioner was one of the best Teaching Assistants in his graduate studies in the department of chemistry at the University of Akron, with clearly no credible basis to make that assessment. Furthermore, the AAO noted, the recommendation letters contained highly technical descriptions of the petitioner's work, but did not answer the question of how, exactly, the petitioner's work has advanced knowledge or produced new practical applications.
Thus we see from the above example that meeting the NIW criteria requires careful preparation and planning in order to effectively meet the three NYSDOT criteria.
(Updated 10/8/2012 by AD)
For more detailed information about the National Interest Waiver, including minimum requirements and USCIS policies, please click on the relevant links on this page: