The EB2 NIW National Interest Waiver
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What Is An EB2 NIW (National Interest Waiver)?
Under this variant of the EB2 visa application process, an EB2 applicant will not require a job offer or a Labor Certification from the U.S. Department of Labor (DOL), as long as there is ample proof of the EB2 applicant’s usefulness to the nation’s interest.
EB2 NIW (National Interest Waiver) Application Requirements
Under the EB2 or the employment-based second preference category, is a provision termed National Interest Wavier (NIW). Under this arrangement, an EB2 applicant need not procure a Labor Certification or a permanent job offer. Therefore, in the EB2 NIW (National Interest Waiver) category the EB2 applicant can file a self-sponsored application.
The EB2 NIW (National Interest Waiver) requires the EB2 applicant to prove that he or she has exceptional ability or holds an advanced professional degree and is involved in an activity or cause that would benefit the U.S. national interest (the EB2 NIW requirements). Under such circumstance, the EB2 applicant would be able to file an EB2 NIW (National Interest Waiver), which also has its benefits over the usual permanent residency application process.
EB2 NIW Evaluation Process For A Professional Holding An Advanced Degree
An “Advanced Degree” is defined as a postgraduate degree above that of a Bachelor’s degree. To qualify as an advanced degree professional eligible for an EB2 NIW (National Interest Waiver), the EB2 applicant should meet the following requirements:
- The EB2 applicant must possess a Bachelor’s degree, as the USCIS will not accept an education evaluation to determine an equivalent to a Bachelor’s degree.
- The EB2 applicant must possess a Master’s degree, its equivalent, or a higher level. Five years of progressive experience in the EB2 applicant’s specialty after obtaining the Bachelor’s degree would be considered an equivalent to a Master’s degree.
- The EB2 applicant’s work experience cannot be substituted for the Bachelor’s degree.
- In case the EB2 applicant’s specialty specifically requires a Doctoral degree, he must possess it.
An EB2 applicant not in possession of a Bachelor’s degree, be it a U.S. degree of its foreign equivalent, will not be considered eligible.
The Importance Of An Advanced Degree For An EB2 NIW Application
An advanced degree certification (Master’s degree or higher) is a must when applying for the EB2 NIW (National Interest Waiver). The evidence for advanced degree may be presented through the following documents:
- A copy of the EB2 applicant’s official academic record, either an U.S. advanced degree or its foreign equivalent. It should be complete with details like date of attendance, area of specialty and the date the degree was awarded.
- A copy of the EB2 applicant’s official academic record showing a U.S. Bachelor’s degree or a foreign equivalent and evidence in the form of letters from current or former employer showing that the EB2 applicant has at least five years of progressive post baccalaureate experience in the specialty.
- Letter of experience which must be on an official letterhead, must list the employer’s name, address, date, the signatory’s name, title, description of the EB2 applicant’s experience including dates of employment and specific duties.
The EB2 applicant must provide evidence to satisfy at least three of the six criteria mentioned below to qualify as an EB2 applicant with exceptional ability in the field of science, art or business.
- An official academic record showing that the EB2 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 letters from current or former employers showing that the EB2 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 EB2 alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
- Evidence of membership in professional associations
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations
If the EB2 applicant meets the above-mentioned criteria, the EB2 applicant has to further establish eligibility using the following three prong test in Matter of Dhanasar:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a Labor Certification.
Provisions Required By The Three Prong Test For Matter Of NYSDOT And Matter of Dhanasar For The EB2 NIW
In December 27, 2016 the USICS Administrative Appeals released a new and highly effective method of testing the EB2 NIW applicant’s exceptional abilities. This came to be known as the Matter of Dhanasar Three-Prong Test and became established as the new test for evaluation and approval of the EB2 NIW.
The NYSDOT analysis and testing method that was in practice has been discarded. It was considered to be confusing and led to unnecessary subject evaluation. Hence the AAO declared it was adopting a clearer framework for evaluating an EB2 NIW (National Interest Waiver). The framework is stated below. The following considerations will be taken into account while evaluating the applicant’s EB2 NIW (National Interest Waiver) eligibility under the new framework in Matter of Dhanasar.
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a Labor Certification.
The USCIS may approve the EB2 NIW (National Interest Waiver) as a matter of discretion upon the satisfactory evaluation of the above mentioned.
The Three Prongs Of The Three-Prong Test Adopted By USICS On The AAO Decision For The National Interest Wavier
- Substantial Merit And National Importance – The EB2 NIW applicant must provide ample evidence and substantiation that the proposed specialty will directly benefit society and positively impact people’s lives. This needs to be done with immense clarity and conviction.
- Scope Of Implementation – The EB2 NIW applicant must demonstrate how the above-mentioned specialty would be carried out in all terms and conditions. This too needs to be done with clarity and conviction.
- Reason For Labor Certification Circumvention – The EB2 NIW applicant will find this prong the most difficult to overcome as it will require a well-crafted and convincing reasoning highlighting the high importance of the applicant’s work to the United States and hence would be important enough to waive a Labor Certification.
Precedent Cases: Evaluating The Applicant’s Case For EB2 NIW With Respect To Matter Of NYSDOT And Matter of Dhanasar
For the purpose of understanding the evaluation criteria while deciding the benefit of the EB2 NIW applicant’s specialty to the nation as a whole, there have been cases in the past that have set precedents. One such case in point is the ruling in Matter of New York State Department of Transport (NYSDOT).
In this case, when the question arose about the EB2 NIW applicant’s employment in an area of “substantial intrinsic merit”, the USCIS concluded that earthquake engineering of bridges satisfied the test of “substantial intrinsic merits.” When the question of the benefit being of national importance arose, the contradictions seemed evident. According to NYSDOT, the Administrative Appeals Unit stated that the New York bridges and roads facilitated interstate commerce and therefore served the national interest of the U.S. At the same time, the Administrative Appeals Unit indicated that the impact of professionals such as attorneys, school teachers or chefs were “so attenuated at the national level as to be negligible.” This contradicted the earlier opinion issued by the Administrative Appeals Unit, which concluded that small national interest was sufficient even if the specialty indirectly benefited the nation through regional or local action.
Next arose the question of the quantum of national interest being adversely affected if a Labor Certification was required of the applicant. This evaluating standard focuses on the applicant. The NYSDOT case stated that the very purpose of the Labor Certification was to protect U.S. workers from being displaced by foreign workers and therefore the EB2 applicant must convince the INS that the national benefit of a Labor Certification exemption was “so great as to outweigh the national interest inherent in the Labor Certification process.”
The other case in point has been the Matter of Dhanasar (AAO, December 2016). This case of the EB2 NIW (National Interest Waiver) adopted a more flexible analysis in order to benefit more EB2 NIW applicants. The important points the case made were as follows:
- The EB2 NIW applicant held two Master’s degrees and a Ph.D. in the field of developing air and space propulsion systems
- He was serving as a Postdoctoral research associate and had developed novel models
- The EB2 NIW applicant also provided evidence of publications citing the work
- He had membership in professional associations
- He provided documentation regarding teaching activities
- He submitted letters of recommendation from experts in the field
The AAO granted an EB2 NIW (National Interest Waiver) after noting the applicant satisfied all three prongs of the new test over and above funding from national science agencies. This new analytical approach created a clearer framework by also recognizing the service of a broader range of endeavors by a foreign applicant’s benefit to national interest could be of “potential prospective impact” rather than a concrete and existing one. The new framework allows for a wider range of foreign applicants for the EB2 NIW. They include:
- Junior scientists
- Postdoctoral scholars
- Biomedical researchers
- Entrepreneurs involved in job creation
- Investors
- Academic physicians
- Advanced level graduate students, particularly those involved in the STEM disciplines
- Artists operating at a national level
Evaluation Of The First Prong Of The Three Prong Test With Regard To Matter Of NYSDOT And Matter of Dhanasar
The first prong states that the EB2 NIW (National Interest Waiver) applicant must show the field of specialty mentioned would be of substantial intrinsic merit to the United States. This prong would be the easiest to demonstrate when compared the other two. The field of substantial merit, apart from scientific research, also included arts, social sciences, business, health, safety, economy, environment, education and engineering, thus making it more inclusive.
After the ruling in the 2016 case of Matter of Dhanasar, the new first prong would be “the foreign applicant’s proposed specialty has both substantial merit and national importance.” Regarding the “substantial merit and national importance”, the USCIS Administrative Appeals Office (AAO) noted that the EB2 NIW (National Interest Waiver) applicant’s beneficial merit can be shown in the field of business, entrepreneurship, science, technology, health, culture or education. It also held that the EB2 NIW applicant was not required to demonstrate the potential to create a substantial impact, as it acknowledged that pure science and research may not translate into economic benefits for the United States.
The AAO further emphasized that the national importance and substantial merit requirement was focused on the specific endeavor the foreign applicant planned to undertake and that the merit could be demonstrated in a range of areas, thus the potential to create significant economic impact was favorable but not absolute.
Evaluation Of The Second Prong Of The Three Prong Test With Regard To The Matter Of NYSDOT And Matter Of Dhanasar
The second prong states that the EB2 NIW (National Interest Waiver) applicant “must show that the proposed impact of the work would be of national significance.” This meant that the employment could be limited to a particular geographic area but the work would benefit the nation as a whole. Therefore, the benefits of the EB2 NIW applicant’s work should not be limited to a particular geographical location of the United States. For instance, if an EB2 NIW applicant is to work in a particular hospital, it would appear that the benefit would be limited to the location of the hospital. But, should the applicant demonstrate the development of new procedures or techniques that could be implemented in other hospitals, then the national benefit could be established.
With regard to the Matter of Dhanasar, the second prong switches the focus to the EB2 NIW applicant and examines whether the EB2 NIW applicant would be able to advance the proposed endeavor. In order to do this, the AAO included certain non-exhaustive factors to be considered. The following factors include but are not limited to:
- The EB2 NIW applicant’s educational qualification, skills, knowledge and records of success
- A plan for the future or a vision
- The EB2 NIW applicant’s progress in achieving the proposed endeavor
- The level of interest of other parties such as users, customers or investors
Evaluation Of The Third Prong Of The Three Prong Test With Regard To The Matter Of NYSDOT And Matter of Dhanasar
The third prong states that the EB2 NIW (National Interest Waiver) applicant “must show waiving the Labor Certificate requirement would benefit the national interest of the United States.”
The Labor Certification process had been established by the U.S. Department of Labor (DOL) to protect U.S. national interest by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. Therefore, when deciding upon an approval to waive the Labor Certification requirement for an EB2 NIW (National Interest Waiver) application, the USCIS would look at all evidence submitted to decide if the national benefit is so great that it outweighs the U.S. national interests inherent in the Labor Certification process.
Evidences that would help establish reasons to waive the Labor Certification requirement could include:
- Copies of published articles that cite and recognize the EB2 NIW applicant’s achievements
- Copies of grants or funding received by the EB2 NIW applicant listing the amount, terms, as well as the names of the principle and co-investors
- Documents showing how the EB2 NIW (National Interest Waiver) applicant’s work is being implemented by others, for example:
- Contracts with companies using the EB2 NIW applicant’s products
- Documents showing licensed technology the EB2 NIW applicant or the EB2 NIW applicant’s company invented or co-invented and how that licensed technology was being used by others
- Patents or licenses awarded to the EB2 NIW applicant or the EB2 NIW applicant’s company with documents showing its usage and significance to the field
With regard to the third prong of the Matter of Dhanasar case, the AAO has listed the following factors that may be considered in showing that “on balance it would benefit the U.S. to waive the requirement of a job offer and labor certification as a foreign applicant”:
- Whether it would be impractical for the EB2 NIW foreign applicant to obtain a job offer or Labor Certification on the foreign applicant’s behalf
- Whether the specialty would still benefit the U.S if other qualified U.S. workers were available
- Whether the U.S. interest in the EB2 NIW foreign applicant’s national contribution is sufficiently urgent to forgo the Labor Certification
The AAO later eliminated the requirement of comparing the foreign applicant to other U.S. workers in the same field and stressed that the new test was more flexible to allow for more foreign applicants to satisfy the requirements of an EB2 NIW (National Interest Waiver).
Ways To Successfully Meet The Requirements Of The Third Prong Test For EB2 NIW
To make a case in point for the EB2 NIW applicant’s approval of the third prong requirement the following points should be crafted and presented to the best of the EB2 NIW applicant’s ability:
- The EB2 NIW foreign applicant would play a critical role in the project and it would be unable to continue the project without the EB2 NIW applicant’s contribution
- A specific area of scientific advancement would be hindered without the EB2 NIW applicant’s continued presence in the United States
- A U.S. national goal would be compromised without the EB2 NIW applicant’s continued presence in the United States
Another important consideration in this process would be to prove that the EB2 NIW applicant has “some degree of influence on the field of specialty as a whole.” This can be substantiated with the following:
- The EB2 NI2 applicant should present publication records to establish past achievements. These could be in the form of journal articles, presentations, books, chapters, patents and publication citation records. A publication record accompanied by citation records would hold more merit, as it would demonstrate the influence of the EB2 NIW applicant on the field and also that the work has been recognized in the field.
- The EB2 NIW applicant should present recommendation letters or reference letters. The independent reference letters would carry more weight than reference letters from dependents. Independent recommenders are those that have never worked, collaborated or advised the EB2 NIW applicant in the field. The reference letters should discuss the EB2 NIW applicant’s contribution to the field in detail and comment on the benefit of the work to the United States.
Provisions Made For Consideration Of Self-Employed Individuals For EB2 NIW
There have been instances where self-employed individuals were considered for the Labor Certificate wavier even though they seemed ineligible for it (an example being a self-employed environmental engineer who received approval because of his self-employment).
However there have been instances self-employed individuals were denied Labor Certification like in the case of a trade specialist, the EB2 NIW application was rejected on the basis that the record was unclear as to the EB2 NIW applicant’s standing in the field.
Provisions Made For Physicians With Regard To EB2 NIW
The U.S. Congress has resolved the earlier issue of the J1 visa for foreign medical graduates, which involved the granting of a waiver of the two-year foreign residence requirement based on the sponsorship by an interested government agency.
After the NYSDOT decision, the U.S. Congressional legislation also stated that such foreign medical graduated physicians could be granted the EB2 NIW if they were willing to work full time in a designated health professional shortage area (HPSA) or in a Veteran Administration (VA) hospital for a minimum period of five years.
Provisions Made For An Applicant With A Low Citation Record With Regard To EB2 NIW
The United States Citizenship and Immigration Services (USCIS) has no set limit on the maximum or minimum number of citations. Generally, the USCIS will review all available documents including publications, reference letters, educational documents, experience certificates, peer reviews, memberships, finished projects and citation records. The citations being a quantifiable measure of merit will always be scrutinized by the USCIS.
On the other hand, EB2 NIW applicants with few or no citations should provide alternate explanations such as working for certain industries or private firms where intellectual property considerations or national security considerations supersede the publication of their work or research results.
EB2 NIW applicants with few citations could also include patented models or designs, which could influence the industry on a national scale. Strong recommendation letters that sufficiently portray evidence of the growing influence of the EB2 NIW applicant’s work in the field also serve as strong evidences.
The following example is an AAO decision to grant the EB2 NIW to an EB2 NIW applicant who had only one citation but had designed an important software package that demonstrated national interest:
“While frequent citation can certainly bolster a researcher’s claim to have influenced the field, the lack of frequent citation is not a bar to eligibility where other objective evidence of the applicant’s influence exists. Engineers designing new technology may not disseminate their most significant work for intellectual property reasons or because it is limited to a narrow segment of the field. Other evidence, such as licensing agreements or affirmations from government agencies or industry officials who have adopted the technology must be considered.”
The Approach For Applicants With Entrepreneurial Abilities
EB2 NIW applicants with entrepreneurial abilities should provide the most persuasive evidence. For instance, if the EB2 NIW applicant has started a company within the United States and can show documents of employment data or fiscal contributions to the U.S. national economy, this evidence would provide critical support to the EB2 NIW approval.
The USCIS has displayed its willingness to approve the EB2 NIW for foreign entrepreneurs based on its experience with past EB2 NIW approval with the necessary clarification memos.
The Approach For Applicants With Professional Activities And Contributions In The Field
The approach for an EB2 NIW applicant without publications and citations would be through highlighting professional activities and contributions in the field that have benefitted the nation. These professional activities and contributions in the field could include business reports, commercial book publications, business or engineering models used on projects in several parts of the United States, consulting for national organizations or extensively downloaded articles or reports. The EB2 NIW applicant should have the appropriate documentary evidence to support these claims in the form of testimonial letters, reference letters, copies of reports or statistics.
Provisions For The Application Of The EB2 NIW For U.S. Permanent Residency By A Foreign Physician
The National Interest Waiver for a foreign physician is only available for pediatricians, general internal medicine, family or general medicine, obstetrics, gynecology and psychiatry. EB2 NIW applicants whose employment would be in the “U.S. national interest” are not required to go through the Labor Certification process. Applicants may apply for a EB2 NIW if they intend to work at least five years in a medically underserved area (MUA) or at a Department of Veteran Affairs (VA) facility. Here the EB2 NIW application will not require a permanent job offer and could be filed by an independent physician who need not be employed by an U.S. organization. The EB2 NIW application should include:
A full-time employment contract issued and dated six months prior to the date of filing the application, for the required period of medical practice or an employment commitment letter from a VA facility, if the physician is an employee.
If the EB2 NIW applicant has established his or her own practice, the EB2 NIW applicant must submit a sworn statement committing to the full-time practice of clinical medicine for the required period. The EB2 NIW applicant should also describe the steps taken or steps intended to establish the practice.
The EB2 NIW applicant must submit evidence that he will provide full-time clinical medical service in a medically underserved area and in a medical specialty designation by the HHS or at a VA facility.
The applicant has to obtain a letter from a U.S Federal Agency or State Public Health Department stating that the applicant’s work is or will be in the public’s interest. These letters should reflect knowledge of the EB2 NIW applicant’s qualifications and describe the agency’s background and interest in medical affairs.
The applicant should also provide evidence of satisfaction or waiver of the J1 home residency requirement, if the applicant has received medical training in the United States as a J1 exchange visitor.
How To Approach The EB2 NIW Application With No Scholarly Publications Or Citations
The approach for EB2 NIW applicants in a highly specialized field:
When an applicant doubts the chances of approval for the green card because of the lack of publications or citations, an optimal approach to strengthen the case should be employed.
Since in both the EB1 and EB2 immigrant visa application process, the first step would be to determine the applicant’s field of specialty, it should be presented accordingly. For example, instead of mentioning the field as Information Technology, it would make a stronger case to show that the applicant has risen to the top of the field of microchip design. Thus, narrowing the scope of the field to a highly specific one before starting the application process is a success strategy.
And by narrowing the field of specialty, the applicant can argue the existence of a small number of publications and therefore relatively low number of citations in the highly specific field.
Hence the approach with a highly specific field of specialization could provide additional support to the notion of the applicant’s vitality in the field. This can be further enhanced by using language like, “the hybrid field of…” or “the highly specialized field of…”in the application cover letter and reference letters.
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