As you know, a National Interest Waiver petition permits a foreign national to self-petition and bypass the customary route of obtaining a labor certification. If you think the NIW is the right choice but need help knowing where to start, stay tuned for the frequently asked questions we come across.
What does NIW stand for?
National Interest Waiver. This refers to the fact that the endeavor must be in the national interest to waive the labor certification for the applicant to be approved in this category.
Is this a first-preference category?
No. It is an employment-based 2nd preference category. For most individuals, this does not affect immigrant visa availability. However, nationals of China and India have a more extended waiting period due to high demand.
What are the minimum requirements for an NIW?
Since this is an employment-based, second-preference (EB-2) petition, the beneficiary of an NIW must first qualify as either an “Advanced Degree Professional” or an individual of “Exceptional Ability.” The proposed endeavor for the petition must have “substantial merit and national importance.” The applicant must be “well-positioned” to execute their proposed endeavor. Finally, on balance, you must show that it would be in the national interest to waive the job offer and PERM (Program Electronic Review Management) labor certification requirements.
What is an Advanced Degree Professional?
The term “Advanced Degree Professional” means that the beneficiary has an advanced degree through education (M.A., M.S., M.E., M.D., or Ph.D.). It also includes an individual that has earned a bachelor’s degree plus five years of progressively responsible experience.
What is an Individual of Exceptional Ability?
USCIS deems an individual has exceptional ability if they can prove at least three (3) of the following:
• An official academic record with proof of a degree, diploma, certificate, or similar award from an institution of higher education
• Letters documenting 10 or more years of full-time experience
• A license/certification to practice the profession
• Documentation of salary or other remuneration for services which demonstrate exceptional ability
• Membership in one or more professional associations which require achievement in order to become a member
• Recognition for any achievements and/or significant industry contributions by the applicant, either from their peers, government entities and/or professional or business organizations
• Other comparable evidence of eligibility if no evidence from the above is available or applicable
To apply for an NIW, do I have to be both an Advanced Degree Professional and an individual of Exceptional Ability?
No, an applicant must only satisfy the “Advanced Degree Professional” or the “Exceptional Ability” requirement. Proof of both is unnecessary. Please note that qualifying as either one fulfills the minimum requirement for the EB-2 category and that fulfilling either requirement or even both, does not on its own automatically guarantee a successful NIW case, as there are two other prongs that must be reviewed which include that the petitioner is well positioned to undertake their proposed endeavor, and that it is in the national interest to waive the job offer and PERM labor certification requirement.
How do I prove that I am “well positioned” to execute my proposed endeavor?
This prong really dives into the actual endeavor and your background.
For the endeavor, you must show that it does in fact have substantial merit and national importance. Here, it is good to look at how it affects communities, but more importantly, you want to look at how it affects the U.S. on a national level.
Regarding your background, think about your relevant education, work experience, letters of recommendation, certifications, awards, memberships, publications, patents, and any other comparable evidence. This evidence should be used to demonstrate that it has given you a strong foundation and has well positioned you to execute your proposed endeavor.
What is a letter of recommendation in an NIW petition?
This refers to a letter written by an expert in your field or an otherwise authoritative person in an allied or supported field. The letter discusses the abilities and accomplishments of the you seeking an NIW and the importance of your work as it relates to the national interest.
Whom should I contact to obtain letters of recommendation?
Letters of recommendation can be obtained from various sources. You should get recommendations from experts in your field. In their letters, they should demonstrate how you have made a significant contribution to your field and have achieved a degree of recognition.
Other possible recommenders include top-level management figures of prospective companies using your work or current or former employers. We recommend that you include letters from individuals who have not worked with you personally but are still aware of your achievements, as well as letters written by people who know you well.
How many letters of recommendation would you say are needed for a successful NIW petition?
There is no minimum number of letters of recommendation required. Generally, we include three to four letters of recommendation in our clients’ NIW applications, but the most important consideration is always quality, not quantity.
What do you mean by a “strong” or “compelling” letter of recommendation?
For an NIW petition, a “strong” or “compelling” recommendation letter confirms the writer’s background, and explains the applicant’s abilities, talents, and accomplishments. It also describes the benefits that will accrue to U.S. national interests due to the applicant’s work.
How do I prove that I should not be subject to PERM labor certification?
In the last prong, you must show that on balance, it would be in the national interest to waive the job offer and PERM (Program Electronic Review Management) labor certification requirements. This is a subjective criterion, but often the key to overcoming this can be demonstrated through the letters of recommendations from peers in your field of expertise. Some of the strongest arguments are from entrepreneurs because of the uniqueness of their endeavors and how they intend to, or are currently, tackling their proposed endeavor, as detailed in an immigration specific business plan.
Do I need to live in the U.S. to apply for an NIW?
No, an individual may reside either in the U.S. or abroad.
Does NIW require an employer sponsor?
An NIW does not need to be employer-sponsored but is an option.
USCIS investigates whether the applicant has any published articles in your field, relevant awards, and whether you are a member of a professional organization within your field. If I do not have all of these, can I still apply for an NIW?
Yes. Not all prongs need to be met, but the stronger the evidence you can provide, the more likely your case will be looked at favorably and approved.
If I have a pending labor certification for another green card application pending, can I apply for an NIW?
Yes. The applications will be processed separately.
However, it is important to note that if you obtain a green card through the traditional three stage process with the labor certification, you are required to work for the employer that petitioned for your green card.
If I have been denied a labor certification, can I still petition for an NIW?
Yes, assuming you would qualify for an NIW. The standards for NIWs and labor certifications are very different. A labor certification is based on a need for more available U.S. workers with minimum qualifications for a particular job.
In contrast, an NIW is based on the applicant’s proving that he or she will be more productive and better able to serve national interests than U.S. workers with minimum qualifications.
Do I have to stay in the same industry as my NIW case after it’s approved?
Yes, you are required to work in the same field that benefits the country’s national interest.
How long does USCIS take to process an NIW application? Can I get an expedited decision?
Processing times for a “National Interest Waiver” petitions vary yearly, but generally take over 7 months to process. If the NIW petition is eligible for Premium Processing while your petition is pending, it is a great idea to upgrade it so that you can receive a decision in 15 days.
If my NIW is approved, what is the next step toward getting a green card?
The next step is to file for permanent residence based on the approved I-140 in the U.S. or at a U.S. consulate abroad. The permanent residence application may also be filed concurrently with the I-140 National Interest Waiver, depending on the availability of immigrant visa numbers in the employment-based second preference category of the Visa Bulletin.
As promised, here’s some bonus information that you may not know about:
How do I prove that I am in a position to advance the endeavor?
USCIS wants to know that you not only have an endeavor that will benefit the nation but also that you have the strong potential to make it succeed. It is important to note that you do not have to prove that your endeavor will succeed, only that it can succeed.
There is a variety of evidence that can be used to support your ability to advance the endeavor. You could demonstrate that you’ve acquired an appropriate specialized degree. You could also show that you have had success in the past in a similar endeavor or that you have made substantial progress in your proposed endeavor. Personal statements, evidence, and letters of recommendation can help you highlight why you are perfectly positioned to push your endeavor forward.
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