1. The EB2 National Interest Waiver Application for Alien of Exceptional Ability or Advanced Degree Professional
The National Interest Waiver (NIW) category is in the employment-based, second preference category (EB2). However, in contrast to regular EB2 immigration petitions, National Interest Waiver petitions are exempt from the labor certification and job offer requirement. This means that an applicant who does not have a tenure-track position or permanent job offer could qualify EB2 NIW, and file a self-sponsored NIW petition.
The EB2 National Interest Waiver (NIW) is a waiver of the job offer requirement for alien applicants who wish to immigrate to U.S. Generally, an alien applicant must undergo the long Labor Certification process. But if the alien can prove that he or she is an alien of exceptional ability or an advanced degree professional, and involved in an activity which could prospectively benefit the U.S. national interest, then the alien applicant may be eligible to file for EB2 National Interest Waiver application, which provides several advantages over the usual U.S. permanent residency application process.
Under the EB2 National Interest Waiver regulations, neither an job offer nor a labor certification is required, but the EB2 NIW petition must be accompanied by convincing evidence that the alien applicant is coming to the U.S. to continue work in the area of expertise, and that the work will help improving the economy, healthcare, environment, or education of United States. These EB2 NIW regulatory is perceived to be vague. However, in practice, USCIS have been applying a stricter criteria developed by case law.
To establish eligibility for an NIW petition, the applicant must be eligible to file in the EB2 category, which means that an applicant should hold an advanced degrees, or else be an individual with exceptional ability in the sciences, arts, or business. The applicant must also plan to continue work in the field of expertise in the United States. If all these factors are met, the individual must still demonstrate eligibility using the following three-prong test in Matter of Dhanasar:
1) the foreign national’s proposed endeavor has both substantial merit and national importance;
2) the foreign national is well positioned to advance the proposed endeavor; and
3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
2. EB2 National Interest Waiver Application for Aliens with Exceptional Ability In Sciences, Arts Or Business
Similar to the EB-1A, Extraordinary Ability Category, the EB2 NIW category requires the applicant to show significant success and contributions in the field of expertise. There must be clear evidence of the anticipated benefits to U.S. from the applicant's work, and these benefits must outweigh the U.S. national interest in protecting U.S. workers through the PERM Labor Certification process.
As a requirement of EB2 National Interest Waiver (NIW) petition, if an alien applicant does not have an advanced degree, PhD or Master Degree, he or she must prove to be an alien of exceptional ability. The USCIS has defined an "alien of exceptional ability" as a professional who has a degree of expertise above that ordinarily encountered in his or her field.
An alien applicant may qualify for "Aliens of Exceptional Ability" if:
- the alien applicant has exceptional ability in the sciences, arts, or business;
- the alien applicant will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and
- if the alien's services in one of those fields are sought by an employer in the United States.
The law defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered." The USCIS has enumerated six factors that denote exceptional ability. If an applicant meets three of these, he or she will qualify for the classification of Alien of Exceptional Ability. To show that you are an Alien of Exceptional Ability in the sciences, arts, or business, you must be able to provide at least 3 of the following 6 items:
1) 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;
2) Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
3) A license to practice the profession or certification for a particular profession or occupation;
4) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
5) Evidence of membership in professional associations; or
6) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Please remember that one needs only to be able to supply three of these items, not the whole list. The alien applicant provided evidence must be indicative of or consistent with a degree of expertise significantly above that ordinarily encountered. Therefore, evidence submitted to establish exceptional ability must somehow place the alien above others in the field in order to fulfill the criteria; qualifications possessed by every member of a given field cannot demonstrate a degree of expertise "significantly above that ordinarily encountered."
The USCIS regulation provides that mere possession of a degree, diploma, certificate or similar award from a college, university school or other institution of learning shall not by itself be considered sufficient evidence of exceptional ability. To meet the criterion set forth in the regulation, formal recognition in the form of certificates may have more weight than letters prepared for the application "recognizing" the alien's achievements.
3. EB2 National Interest Waiver Application for Professional Aliens Holding an Advanced Degree
To qualify for EB2 National Interest Waiver application, an alien applicant should have an advanced degree and exceptional ability in sciences, arts or business. The "advanced degree" is defined as postgraduate degree beyond a bachelor degree, at a minimum, a Master Degree or its equivalent. Just having the degrees (Master's or higher ) and working in an area of U.S. national interest is not enough. The alien applicants must be outstanding in their field.
In order to qualify for advanced degree professional, the alien applicant must meet the following requirements:
1) The alien must have a bachelor's degree. The USCIS will not accept an education evaluation to determine an equivalency to a Bachelor's degree;
2) The alien must have a Master's degree or the equivalent, or higher. The USCIS has determined that five years of progressive experience in the alien's specialty after obtaining the Bachelor's degree will be considered an equivalent to a Master's degree.
The "equivalent" of a U.S. Master Degree is the Bachelor Degree followed by at least 5 years of progressive experience in the specialty. Experience may NOT be substituted for the Bachelor Degree in establishing eligibility of NIW application. In addition, if applicant's specialty customarily requires a Doctoral Degree, the applicant should possess such a degree. An alien can satisfy the advanced degree requirement by holding any of the following:
- a U.S. Master Degree or higher, or a foreign degree evaluated to be the equivalent of a U.S. Master Degree or higher; or
- a U.S. Bachelor Degree, or a foreign degree evaluated to be the equivalent of a U.S. Bachelor Degree, plus five years of progressive, post-degree work experience. An alien who does not possess at least a Bachelor Degree or a foreign equivalent degree will be ineligible for this classification.
For NIW application, USCIS will not accept an education evaluation to determine an equivalency to a Bachelor Degree. USCIS has determined that five years of progressive experience in a specialty after obtaining the Bachelor Degree will be considered an equivalent to a Master Degree.
4. National Interest Waiver Requirements - the Three-Prong Test for Matter of NYSDOT and Matter of Dhanasar
The Immigration Act requires that all aliens seeking to qualify as having exceptional ability to show that their presence in the United States would substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States, and adds the additional test of "national interest" to those who wish the job offer waiver. Neither Congress nor USCIS defined the term "national interest" in either the Immigration Act or the regulations, in order to leave the application of this test as flexible as possible.
However, an alien seeking to meet the national interest standard must show significantly more than "prospective national benefit" required of all aliens seeking to qualify as having exceptional ability. The burden rests with the applicant to establish that the exemption from, or waiver of, the job offer requirement will be in the national interest of United States. Each case is to be judged on its own merit. In addition, there are a number of rules that the USCIS regularly employs in the adjudication of the NIW applications.
There are three key requirements for an EB2 National Interest Waiver petition. An alien applicant should meet these requirements to demonstrate that your request to waive the job offer requirement and therefore the labor certification is in the "national interest" of United States. There is no exact regulatory definition of the term “national interest”, USCIS normally uses a 1998 Administrative Appeals Office (AAO) precedent decision as a three-prong test for evaluating a National Interest Waiver petition (Matter of New York State Department of Transportation, NYSDOT). These three prongs or key requirements are:
1) He or she seeks work in an area of substantial intrinsic merit: The alien must play a significant role in an area of substantial intrinsic merit, and must not be simply a minor constituent who took part thereof.
2) The candidate's proposed work will benefit the nation as a whole: The alien proposed benefit should be national in scope. The alien must be involved in an undertaking activity that will substantially benefit the United States.3) The significant benefit derived from the alien's participation in the national interest field should considerably outweigh the national interest in using the Labor Certification process: The National interest would be adversely affected if a Labor Certification were required for the alien. Under a NIW, an alien who seeks an exemption from the job offer requirement must be able to demonstrate that the benefit his or her activity would provide to the nation is so great as to outweigh the nation's interest inherent in completion of the Labor Certification process.
But the AAO found the third prong of NYSDOT case that the petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required as being the most problematic. The AAO describes that the third prong in NYSDOT case including one stating that applicant must show “influence in the field.” The AAO noted that this “influence” standard looks to past success to predict future benefit, but while stating there is some merit in this, there are some talented individuals for whom past achievements are not the best predictor of future success.
The AAO also found that trying to make NIW applicants to show a national interest if they skip a process to recruit unidentified U.S. workers does not make sense, particularly for self-employed individuals such as entrepreneurs. The AAO criticized the concept of showing a harm to the national interest, if a labor certification is bypassed, something is not in the statute and unnecessarily narrows the Secretary of Homeland Security’s discretionary authority under the INA.
In Matter of Dhanasar that USCIS' Administrative Appeals Office (AAO) released on December 27, 2016, AAO created a precedential new test for a EB2 National Interest Waiver petition (EB2 NIW) in sustaining the appeal, and approved the national interest waiver petition.
In Matter of Dhanasar, the AAO held that the NYSDOT analysis caused much confusion, and had a tendency to lead to unnecessary subject evaluation. AAO held that it was vacating NYSDOT criteria, and adopting a new and clearer framework for adjudicating EB2 National Interest Waiver petitions, which is stated as:
Under the new framework in Matter of Dhanasar, after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:
1) the foreign national’s proposed endeavor has both substantial merit and national importance;
2) the foreign national is well positioned to advance the proposed endeavor; and
3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.
After nearly 20 years, Matter of Dhanasar criteria provides an important change for NIW petition adjudication. This case creates a more flexible and realistic framework for the NIW immigration category. These changes will lead to a broader spectrum of foreign nationals being eligible for EB2 NIW immigration petition.
The National Interest Waiver may not be based solely on the ability of alien to alleviate a local labor shortage. The USCIS has determined that granting the National Interest Waiver for this reason would be unnecessary since the Labor Certification is employed to determine if a labor shortage exists and then allow a vacant position to be filled. Therefore, an application that is based solely on the fact that the alien will ameliorate a labor shortage will be denied.
Also, the alien must establish that the alien has a past record of specific prior achievement which justifies projections of future benefit to the national interest. The alien must have past experience in the area in which he/she will benefit the United States. The USCIS looks at this very closely to determine if the alien has a serious commitment to the activity which promotes the national interest.
5. Summary Questions in Evaluating Whether One Qualifies for NIW - for Matter of NYSDOT and Matter of Dhanasar
Uner the NYSDOT criteria, the questions may be asked:
- Is the alien's offered employment in the area of "substantial intrinsic merit?" i.e. are you going to work in a field of endeavor that has "intrinsic merit?"
In the NYSDOT case, the USCIS concluded that earthquake engineering of bridges satisfies the test of "substantial intrinsic merits."
- Is the proposed benefit national in scope?
This is where the contradiction comes in. The Administrative Appeals Unit stated that the New York bridges and roads provided for interstate commerce, and therefore, serves the national interests of other areas in the country. However, the Administrative Appeals Unit indicated that the impact of professionals such as attorneys, school teachers or chefs are "so attenuated at the national level as to be negligible." This contradicts earlier opinion that were issued by the Administrative Appeals Unit which opined that small national interest is sufficient even if it indirectly benefited through regional or local action.
- Will the national interest be adversely affect if a Labor Certification were required for the alien?
This last evaluating standard concentrates on the alien. The Administrative Appeals Unit in the NYSDOT case stated that the very purpose of the Labor Certification was to protect U.S. workers from being displaced by foreign workers. Therefore, one must convince the INS that national benefit of a LC exemption was "so great as to outweigh the national interest inherent in the labor certification process."
Under the NYSDOT standard, the alien applicant should address all the 3 prongs for EB2 National Interest Waiver application by quoting the relevant laws and addressing each of them separately, which means the following prongs issued in the NYSDOT case:
- 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;
- the petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required.
The NIW applicants should show that the alien's ability to serve U.S. national interest is significantly above the available U.S. worker with same minimal qualifications, and it should show that the alien has a past record of contributions to areas of national interest justifying future benefit to national interest. The alien applicant should address each of the prongs separately, and established how you satisfy these requirements.
However, over years, despite the advantages of the National Interest Waiver petition, USCIS immigration examiners have operated under somewhat vague guidance of precedential NYSDOT case, on the adjudication standards for National Interest Waiver petitions.
In the Matter of Dhanasar (AAO, December 2016), AAO mainly took issue on the NYSDOT case's third prong "the national interest would be adversely affected if a labor certification were required for the foreign national", which led to the dismantling of the NYSDOT framework. As explained by the AAO, this third prong was confusing and vague, and was often interpreted to mean that the petitioner was required "to submit, and the adjudicator to evaluate, evidence relevant to the very labor market test that the waiver is intended to forego.”The precedential EB2 National Interest Waiver case of Matter of Dhanasar provides a more flexible analysis that may benefit many petitioners. In the underlying case of Matter of Dhanasar, the AAO noted that the petitioner:
In finding that the foreign national petition satisfied all 3 prongs of the new test, it also noted his funding from national science agencies.
- holds two master’s degrees and a Ph.D. in fields related to his area of developing air and space propulsion systems;
- is serving as a postdoctoral research associate and developed novel models;
- provided evidence of his publications and other published materials citing to his work;
- evidence of his membership in professional associations;
- documentation regarding his teaching activities;
- letters of recommendation from experts in his field.
The reason for this new analytical approach is to create a clearer framework for adjudicating EB2 National Interest Waiver petition cases. This decision also recognizes that the services of a broader range of endeavors by foreign nationals can contribute to the national welfare, which creates some increased latitude for examining the relationship between a foreign national’s endeavors and their contributions to the national welfare, even if the foreign national can only cite “potential prospective impact” , rather than concrete and existing results.
This framework for national interest waivers opens the door of U.S. permanent residence to an expanded range of foreign nationals, including:
- junior scientists,
- postdoctoral scholars
- biomedical researchers;
- entrepreneurs involved in job creation;
- academic physicians;
- certain advanced-level graduate students, particularly those engaged in the STEM disciplines;
- certain artists operating at a national level;
- a wide range of other endeavors that contribute to the U.S. national welfare, or even prospectively contribution.
6. Analysis of the First Prong Test for National Interest Waiver Petition - for Matter of NYSDOT and Matter of Dhanasar
USCIS has issued a precedent decision in 1998, Matter of New York State Department of Transportation (NYSDOT), which created a three-prong test for alien applicants seeking a national interest waiver. In order to qualify for an EB2 NIW, an alien applicant must demonstrate the first prong test: "you must show that you plan to work in an area of substantial intrinsic merit in the United States."
For the "substantial intrinsic merit", it may be the the easiest requirement to satisfy of the three prongs introduced in NYSDOT case. To demonstrate the substantial intrinsic merit for an EB2 National Interest Waiver petition, the submitted evidence should show that the alien applicant's field is related to an important U.S. national goal, and the alien's work should be beneficial to the United States.
The fields with substantial intrinsic merit are not limited to the fields of scientific research, but can include many fields in arts, social sciences, and business, such as health, safety, economy, the environment, education, engineering, and almost any kind of arts.
To support the argument that an alien applicant's work has substantial intrinsic merit, the submitted documents should explain why the alien's work is important, and should indicate the practical applications and its benefits to the United States. In addition to publications detailing the significance of the alien's work and the benefits to the United States, the recommendation letters from experts in the field are also suitable evidence.
For an National Interest Waiver application, you should establish that your proposed employment has "substantial intrinsic merit." The evidence should show that your proposed employment is of substantial intrinsic merit. Your evidence might show that your field of endeavor may:
- Benefit the U.S. economy;
- Improve wages and working conditions of U.S. workers;
- Improve educations;
- Provide more affordable housing;
- Improve the environment of the U.S.;
- Make more productive use of natural resources, or
- Serve the interests of a U.S. government agency.
Under the first prong of the NYSDOT test for EB2 National Interest Waiver petition requirements, it is important for an alien applicant to focus on the proposed employment. USCIS will look at the submitted documents to determine whether the importance of your proposed work is apparent. The submitted evidence should provide an overview of your experience and qualifications, and demonstrate that you plan to work in an area of substantial intrinsic merit in the United States, which may include:
- Reference letters from your current and previous employers describing your work and its importance;
- Articles or published documents discussing your work and its importance;
- Reference letters from experts in your field to explain your work and its importance. The letters should include information about the expert’s own credentials, such as a Curriculum Vitae (CV).
For the 2016 case of Matter of Dhanasar, the new first prong is "the foreign national’s proposed endeavor has both substantial merit and national importance."
The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, USCIS will consider its potential prospective impact.
Regarding the first prong of showing "substantial merit and national importance", the USCIS Administrative Appeals Office (AAO) noted that the alien beneficiary’s merit may be shown in the fields of business, entrepreneurialism, science, technology, health, culture or education. It held that the petitioner is not required to show that the alien beneficiary has the potential to create a substantial impact, since it acknowledged that pure science and research may not translate into economic benefits for United States.
The AAO emphasizes that the national importance and substantial merit requirement is focused on the specific endeavor that the foreign national plans to undertake. The "merit" may be demonstrated in a range of areas, and the potential to create significant economic impact is favorable, but not required.
Regarding whether the proposed endeavor has national significance, the AAO focused on potential prospective impact. It clearly stated that this impact is not to be evaluated solely geographically, but on a broader scale.
7. Analysis of the Second Prong Test for National Interest Waiver Petition - for Matter of NYSDOT and Matter of Dhanasar
In order to qualify for an EB2 National Interest Waiver petition, an alien applicant must demonstrate the second prong test: "you must show that the proposed impact of your work is national in scope."
While your employment may be limited to a particular geographic area in the United States, you must establish that your work will benefit to more than a particular region of the United States. Under the second prong of the NYSDOT test for NIW requirements, you should demonstrate that your proposed benefit to the United States will be in national scope.
The second prong of EB2 National Interest Waiver petition requires that the alien applicant's work be "national in scope." Therefore, the benefits of the alien applicant's work should not be limited to one particular geographical region in the United States. Thus, the petitioner should relate the the alien's work to a particular national goal, not a regional task.
For example, if an alien physician works in one hospital, it may appear that he or she can only benefit a geographical region. But the EB2 NIW petitioner should demonstrate that the physician can benefit the nation as a whole through the research publications, or through the development of new procedures or techniques that can be implemented in other hospitals outside of the local geographic region.
For scientific research, it may be easier to demonstrate that it can benefits the national in scope, because the scientific advancement in one area can be easily related with a specific national goal, such as healthcare, education, or safety. To explain the alien's work benefiting the nation as a whole, evidence must be submitted to support for the arguments which may include:
1) evidence of government funding: the evidence of the alien's work being funded by the U.S. government can substantiate the claim that the alien's work has benefits to the national in scope.
2) publication citations: the citations can show the impact alien's work on the field, and they can also demonstrate that the alien's work is being implemented or utilized by researchers around the nation, and therefore benefiting the nation as a whole.
3) recommendation letters or reference letters: recommendation letters or reference letters can provide statements explaining the national benefits of the alien's work, and how the work has been implemented and has impact on different geographic regions
You submitted evidence should show that your work will bring benefits to the United States and that the benefits are national in scope, and you should submit evidence that your contributions will impart national-level benefits. Also, you should establish that your ability to serve that national interest to substantially greater extent than the majority of others in the field.
Regarding the second prong of the Matter of Dhanasar case, this prong changes the focus to the foreign national, and examines whether that person actually will be able to advance the proposed endeavor. The AAO included numerous, non-exhaustive factors that will be considered.
The second prong of Matter of Dhanasar shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, USCIS will consider the factors of the individual's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
In determining "whether the foreign national is well positioned to advance the proposed endeavor", the following factors may include, but are not limited to:
- the individual’s education, skills, knowledge, record of success in similar areas;
- a plan for the future;
- progress made in achieving the proposed endeavor;
- the interest of other related parties, such as users, customers, or investors.
The AAO noted that the petitioners are not required to demonstrate that they are more likely than not to succeed in their fields.
8. Analysis of the Third Prong Test for National Interest Waiver Petition - for Matter of NYSDOT and Matter of Dhanasar
For NYSDOT case, in order to qualify for an EB2 National Interest Waiver, an alien applicant must also demonstrate the third prong test: "you must show waiving the labor certification requirement would benefit the national interests of the United States."
For an EB2 National Interest Waiver petition, you should establish that the national interest would not be served if you were required to obtain a labor certification for the proposed employment. You should submit any evidence to establish that the national interest would be affected if you were required to go through the labor certification process. You should demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your service by making the position available to U.S. workers.
The purpose of the labor certification process conducted by U.S. Department of Labor (DOL) is to protect the U.S. national interests 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 whether to approve a waiver of the labor certification requirement for an EB2 National Interest Waiver petition, USCIS will look at all of the submitted evidence to see whether the offered national benefits are so great that they outweigh the U.S. national interests inherent in the labor certification process.
This means that your submitted evidence should show that you serve the U.S. national interest to a substantially greater extent than the majority of your colleagues, and that you have a degree of influence on your field that distinguishes you from your colleagues. Also, since the national interest evaluation is prospective, you should show that you have a past record of achievements that indicate your future benefits to the U.S. national interests.
The submitted evidence to demonstrate that waiving the labor certification requirement would benefit the U.S. national interests may include:
- Copies of published articles that cite and recognize your achievements;
- Copies of grants or other funding you received listing the amount and terms of the grants, as well as the principal and co-investigators;
- Documents showing how your work is being implemented by others, for example: a) contracts with companies using your or your company’s products; b) documents showing licensed technology that you or your company invented or co-invented, and how that licensed technology is being used by others; c) patents or licenses awarded to you or your company with documents showing how they are being used and why they are significant to your field.
You can submit evidence to establish that your past record justifies projections of further benefit to the nation. Your evidence should show that you have influenced the field by acquiring the necessary knowledge or exceptional skills. You should establish that you have a past record of specific prior achievement with some degree of influence on the field as a whole.The third prong of Matter of Dhanasar requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. In performing this analysis, in light of the nature of the foreign national's qualifications or the proposed endeavor, USCIS may evaluate factors such as:
1) whether it would be impractical either for the foreign national to secure a job offer, or for the petitioner to obtain a labor certification;
2) whether even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions; and
3) whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process.
In each case, the factors considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
In announcing the Dhanasar framework, USCIS has vacated its prior precedent decision, Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
It should also be emphasized that the AAO eliminated the requirement of comparing the foreign national to other U.S. workers in the same field, and stressed that the new test was more flexible, so that more foreign nationals may satisfy the requirements of the EB2 National Interest Waiver.
For Matter of Dhanasar, this prong requires the consideration of numerous factors. The USCIS will consider whether it would be impractical for the foreign national to secure a job offer or for the petitioner to obtain a labor certification. Additionally, the USCIS officer will determine whether U.S. would still benefit from the foreign national’s contributions, even if other U.S. workers are available.
Finally, the USCIS will examine whether the foreign national’s potential contributions are urgent enough to warrant bypassing the labor certification. The AAO specifically emphasizes that each of these factors must be taken together, and on balance, should demonstrate that it would be beneficial to the U.S. to waive the job offer and labor certification requirement.
9. Detailed Analysis of How to Meet the Third Prong Test for National Interest Waiver Petition
The third prong of EB2 National Interest Waiver petition is the difficult requirement to satisfy. It is also the key requirement for an successful National Interest Waiver petition approval. The petitioner needs to prove that the benefit of the alien's work outweighs the national interest of protecting U.S. workers in the DOL's Labor Certification process.
Therefore, the alien applicants should prove that it would be adverse to the U.S. national interest if they were unable to continue working in their field in United States without the National Interest Waiver approval. To argue the alien's continued presence in the United States is in the U.S. national interest, the considerations may include:
- The alien applicant plays a critical role in a project, and it would be unable to continue the project without the alien's contribution.
- A specific area of scientific advancement would be hindered without the alien's continued presence in the United States.
- A U.S. national goal be compromised without the alien's continued presence in the United States.
More specifically, this requirement of National Interest can be elaborated by USCIS as "the alien must clearly present a significant benefit to the field of endeavor" and must establish that there has been "some degree of influence on the field as a whole." Thus, the EB2 National Interest Waiver applicants need to show that they have influenced their field of endeavor, which can be shown through any recognition your work has received and the following documents:
1) Publications and alien's past record of achievement: A publication record should be included with the EB2 National Interest Waiver petition in order to demonstrate the alien's past record of achievement. This may include journal articles, presentations, books, book chapters, patents, and publication citation records. It is important that the publication record is accompanied with a citation record, to demonstrate the influence of the alien's work on the field, and to show that the work has been recognized by other people in the field.
Also, the journal impact factors and "average citation records" for the field can be used to show that the alien applicant has an influence above that of the average worker or researcher in the field. To get National Interest Waiver petition approval, there is no certain requirement of citation numbers, and other evidence can be used to offset a low citation record.
2) Recommendation letters or reference letters: Recommendation letters or reference letters are important for the EB2 National Interest Waiver petition. The independent reference letters will carry more weight for EB2 NIW petition than reference letters from dependent recommenders. The independent recommenders are those who have never worked or studied with the alien, collaborated with the alien, or advised the the alien's work previously. The reference letters should discuss the alien's contributions in the field in detail, and also comment the benefit of the alien's work to the United States.
It is a good opportunity to use reference letters to demonstrate the alien's work and its implementation. A reference letter indicates that the alien's work has been used in practical application or industry can greatly strengthen the EB2 National Interest Waiver petition. When drafting the letters for an EB2 NIW petition, it is critical to ensure that the recommendation letters or reference letters contain all of the necessary statements to substantiate the claims your have made in the EB2 National Interest Waiver petition.
3) Evidence for the alien's influence on the field: To show the alien's influence on the field, the evidence may include citations, patents commercialization, contracts, and article downloads. Also, the submitted evidence should include the instances of the practical application or utilization of the alien's work, and provide documentary evidence to support each instance.
It should also be emphasized that the Matter of Dhanasar standard eliminated the requirement of comparing the foreign national to other U.S. workers in the same field, and stressed that the new test was more flexible, so that more foreign nationals may satisfy the requirements of the EB2 National Interest Waiver.
The third prong of Matter of Dhanasar case is actually a new prong, unlike the third prong of NYSDOT case, this third prong does not require a showing of harm to U.S. national interest or a comparison against U.S. workers in the petitioner’s field. The NYSDOT case’s previous third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals.
This more flexible third test which can be met in a range of ways is meant to apply to a greater variety of individuals. However, the factors to be evaluated regarding this prong requiring that on balance, it benefits the U.S. to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification, and whether the U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. That is where excellent advocacy skills will continue to play a critical role in obtaining an approved EB2 National Interest Waiver petition.
10. The Advanced Degree Requirement for National Interest Waiver Petition
For EB2 National Interest Waiver (EB2 NIW) petition, the petitioner must establish that he or she have an advanced degree as of the priority date. The petitioner should submit advanced degree certificate (Master Degree or higher) with certified translation of English language, and/or submit a detailed advisory evaluation of the beneficiary's foreign credentials. The evidence for advanced degree may consist of the following documentation:
• A copy of the beneficiary's official academic record, showing that the beneficiary has a U.S. advanced degree or a foreign equivalent degree, the dates of attendance, area of concentration of study, and the date the beneficiary received the degree; or
• A copy of the beneficiary's official academic record showing that the beneficiary has a U.S. baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer showing that the beneficiary has at least five years of progressive post-baccalaureate experience in the specialty.
The employer can issue the letter of experience on official letterhead and must list the employer's name and address, the date, the signer's name and title, and a description of the beneficiary's experience, including dates of employment and
If the beneficiary completed his education outside the United States, in addition to the beneficiary's official academic record, the petitioner should submit a detailed advisory evaluation of the beneficiary's credentials. This evaluation is necessary to determine the level and major field of the beneficiary's education in terms of equivalent education in the United States.
An acceptable evaluation should consider formal education only, and not practical training or experience; state whether the beneficiary completed the United States equivalent of high school before entering college; provide a detailed explanation of the evaluated material, rather than a simple conclusive statement; and briefly state the evaluator's qualifications and experience.
11. Considerations for National Interest Waiver Petition - Minimum Education, Experience and Training Required to Perform the Services
One factor of national interest waiver petition evaluation by USCIS adjudicators concerns the minimum education, experience and training required to perform the services in protecting the U.S. labor force. Normally, USCIS believes that if U.S. workers with less education, training or experience may adequately perform the job duties for the position, the alien applicant's superior qualifications may be discounted even if the credentials clearly place the alien applicant at the top of the field.
For example, USCIS dismissed an EB2 NIW petition appeal involving an economist determined to be preeminent in his field, and indicated that there are situations in which the very best person in the field will have only a minimally greater national impact than an average and fully qualified worker.
Therefore, the NIW petitioner should document the alien's credentials and how those credentials benefit the alien in filling that crucial role, and the documentation should also establish that persons with inferior credentials may not be able to fill that crucial role. Thus, reference letters from experts in the field should focus on the the benefit of the alien's activities, and the crucial nature of the alien's role.
12. Considerations for National Interest Waiver Petition - Quality of the Evidence
The USCIS' decision on NYSDOT case establishes that the qualifications of experts submitting reference letters are also crucial. USCIS places greater emphasis on the credentials of the "experts" who submit the recommendation letters or reference letters for an EB2 National Interest Waiver petition.
Normally, people recognized as experts in the field are given greater weight by USCIS. In an reference letter, a statement should establish the qualifications of these experts to judge the alien applicant's work.
For colleagues of the same employer that is currently employing the alien applicant, USCIS will give little or less weight for their reference letters, on the basis of lacking objectivity. Also, the reference letters from undistinguished co-workers or former college instructors will subject to greater scrutiny by USCIS than the reference letters submitted by high-level officials of recognized major organizations.
For EB2 National Interest Waiver petition, the alien applicant should establish that he or she has a past record of specific prior achievement with some degree of influence on the field as a whole. The petitioner's previous influence on the field as a whole must justify projections of future benefit to the national interest.
Also, the alien applicant should establish his or her ability to serve the U.S. national interest to a substantially greater extent than the majority of others in the field in some capacity, For example, the alien applicant can submit the following supporting documents to meet the requirements:
- copies of patents and copyrights;
- grant proposals;
- peer reviewed articles;
- performance evaluations for the last five to ten years;
- work that has been evaluated in independent journals;
- awards for work in the field.
Any awards for work in the field must be accompanied by a statement from the institution that granted the award, commenting on the number of awards given, the frequency of the award, the criteria for granting the award, and the number of individuals eligible to compete for the award.
13. Considerations for National Interest Waiver Petition - Self-Employed Individuals
The labor certification application is an U.S. employer sponsored process. Thus, a self-employed alien applicant's ineligibility for immigration visa application through labor certification may be considered as a favorable factor in some cases. For example, USCIS approved a self-employed environmental engineer's EB2 National Interest Waiver petition in part because of his self-employment.
However, USCIS suggests that the self-employment factor will be considered only if it could establish that the alien applicant will play a critical role in furthering a significant national goal. As an example, USCIS rejected the an alien trade specialist's NIW application and his argument that "the labor certification process was unavailable because he was self-employed". USCIS indicated that the record was unclear as to the alien's standing in the field.
14. EB2 National Interest Waiver Petition for Physicians
U.S. Congress has resolved the issue of J-1 visa foreign medical graduates for granting waivers of the two-year foreign residence requirement based on sponsorship by an interested government agency. After the NYSDOT decision, the U.S. Congress' legislations also provide that such foreign medical graduated physicians could be granted the EB2 National Interest Waiver if they agree to work full-time in a designated health professional shortage area (HPSA), or in a Veterans Administration (VA) hospital for a minimum period of five years.
It is clear that a foreign medical graduated physician treating patients in a rural community can help remedy the nationwide shortage of health professionals in medically underserved areas. The law allows the most foreign medical graduated physicians to seek National Interest Waiver based on their employment in underserved areas.
15. EB2 National Interest Waiver Petition Strategies for Aliens with Low Citation Record
For United States Citizenship and Immigration Services (USCIS) to process the EB2 National Interest Waiver petition, there is no percentile numbers to rank an alien applicant's citation records, or there is no certain number of minimum citations.
Generally, USCIS will review the alien applicant's comprehensive documents, including the publications, reference letters, education, experience, peer review duties, memberships, finished projects, and citation record. For USCIS adjudicators, the citations are quantifiable measure of merit, and will always be scrutinized by adjudicators.
On the other hand, the EB2 National Interest Waiver regulation does not preclude the alien's NIW application with moderate citations, low citations, or even no citations. The alien applicants should carefully analyze the existing documents to find strategies to provide alternative explanations for the low citation record, such as working for certain industries or private companies in which the intellectual property considerations or national security considerations supersede the public publication of their work or research results.
- Other strategies to argue the low citation record include showing the alien applicant's models or designs which could influence the industry and in national scope, and not focus on the "research". In one EB2 NIW petition case with low citation numbers, the submitted reference letters from university professors confirmed that the alien beneficiary's work and models have been used in the industry, and USCIS approved the National Interest Waiver case.
- Also, in the EB2 National Interest Waiver petition cover letter, the alien applicant can use the previous AAO cases to defend on the low citation record, in which the AAO has provided several cases for alternative explanations of the low citation or moderate citation record. In one case, the AAO determined that the submitted independent reference letters have sufficiently portrayed evidence of growing influence of the beneficiary’s work, even with the alien's low citation numbers.
The following is an AAO's determination for an EB2 National Interest Waiver petition beneficiary who had only one independent citation, but had designed an important software package that demonstrated his value to the 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 petitioner’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.”
Therefore, it is clear that the impact on U.S. national interest can be demonstrated by other factors, such as intellectual property, licensing agreements, and affirmations from government agencies or industry officials, not only by the alien's citation record. In one case, the AAO determined that the submitted independent witness letters have sufficiently portrayed evidence of growing influence of the beneficiary’s work.
16. EB2 National Interest Waiver Petition Strategies for Aliens with no Scholarly Publications or No Citations
1) The EB2 National Interest Waiver Petition Strategy of Highly Specialized Field
There are some alien applicants who want to apply for U.S. Green Card in the categories of EB1 Aliens with Extraordinary Ability (EB-1A), EB1 Outstanding Researchers or Professors (EB-1B), and EB2 National Interest Waiver (EB2 NIW), but lacking the credentials of publications, citations, and major academic contributions to the field of endeavor.
Even some aliens have doubts for their Green Card application in EB1 or EB2 because of no publications and citations, the petition approval is feasible through the implementations of optimal strategies to strengthen the case.
For both EB1 and EB2 immigrant visa applications, the first step is to determine the the alien applicant's specific field of endeavor. For example, instead of in the field of Information Technology, it is easier to argue that the alien applicant has risen to the top of the field of Microchip Design. Thus, it is important to narrow the scope of the field to a highly specific scope before starting the application process.
By narrowing the alien applicant's work to a highly specific field, the petitioner can argue the statistics of small number of publications and relatively low citation numbers in the highly specific field, and it can also help the USCIS adjudicators to understand of the alien applicant’s work under the U.S. national interest within the general field of endeavor.
For example, if an alien applicant indicates that his or her the field of endeavor is Information Technology, instead of the "Microchip Design", and continues with a detailed technical discussion to claim the benefit to U.S. national interest, the USCIS adjudicators might not understand the alien's contribution to the field properly, and know how the alien's work could be in the the national scope of the Information Technology industry.
In another words, the strategy of a highly specific field could provide additional support to the notion of one’s vitality or importance in the field, by using language like “the hybrid field of…” or “the highly-specialized field of...,” in the petition cover letter and reference letters. and could aid substantially in the approval of EB1 or EB2 immigrant visa applications.
2) The EB2 National Interest Waiver Petition Strategy of Alien Applicant’s Entrepreneurial Abilities
For EB1 or EB2 immigrant visa applications, there are criteria in the regulations that can be claimed without the specifically requirements of publications or citations. An alien applicant should focus on these criteria when petitioning without publications or citations, if other evidence is ready available, which are related to the alien's work in the field.
The most persuasive evidence involves the alien applicant’s entrepreneurial abilities and activities in the scope of the U.S. national interest. If the alien employee has started a company within the United States, and can show documents of employment data or fiscal contributions to the U.S. national economy, the evidence should provide critical support to the EB2 National Interest Waiver petition.
USCIS has displayed its willing to approve the EB2 National Interest Waiver petitions for foreign entrepreneurs, based on its past EB2 National Interest Waiver petition approval and its clarification memos for foreign entrepreneurs filing for a EB2 National Interest Waiver petition.
As an example, if an alien applicant has started a online sales company, and can show the proof of fiscal profitability and the employment of U.S. citizens, the USCIS adjudicators will review the submitted evidence to determine if the alien has distinguished himself or herself from others in the field, and can benefit the national in scope.
For more information about the EB2 National Interest Waiver petition strategy of alien applicant’s entrepreneurial abilities, please also see "The EB2 National Interest Waiver Application for Foreign Entrepreneurs."
3) The EB2 National Interest Waiver Petition Strategy of Alien Applicant's Professional Activities and Contributions in the Field
Another strategy for successful immigrant visa petition in EB1 and EB2 categories without publications or citations involves the alien applicant's professional activities and contributions in the field and throughout the nation.
These professional activities and contributions in the field can include business reports, commercial book publications, business or engineering models used on projects in several parts of the United States, consulting work for national organizations or companies, or extensively downloaded articles or reports. The alien applicant should have the appropriate documentary evidence to support the claims and statements, such as testimonial letters, reference letters, copies of the reports, and statistics.
As an example, the USCIS' Administrative Appeals Office (AAO) approved an EB2 National Interest Waiver petition without citations or publications. The petitioner has demonstrated that the alien’s original models have been applied in several other States in the United States:
“The record demonstrates that the petitioner’s models have been applied in several other States. We are satisfied that the successful use of these models on projects in several parts of the United States, including on projects that previously defied solution despite a concerted effort and on a project that has garnered national attention, demonstrates the influence of the petitioner’s work."
17. Foreign physician's Application of EB2 National National Interest Waiver for U.S. Permanent Residency
For foreign physicians, the National Interest Waiver (NIW) is the special Green Card application type for physicians in underserved areas, and you are required to remain in the position for five years. Additionally, unless the position is through the Veteran's Administration, the physician under NIW is only available for pediatricians, general internal medicine, family or general medicine, obstetrics/gynecology, and psychiatry.
Physicians whose employment would be in the “U.S. National Interest” do not need to go through the Labor Certification process. Generally, these physicians may petition for a EB2 National Interest Waiver if they intend to work at least five years in a medically underserved areas (“MUA”) or at a Department of Veterans Affairs (VA) facility. The National Interest Waivers do not require a permanent job offer, and may be filed by physicians who are independent practitioners rather than "employees" of a U.S. company or organization. A petition for national interest waiver by a physician should include:
1) A full-time employment contract, issued and dated within 6 months prior to the date the petition is filed, for the required period of clinical medical practice, or an employment commitment letter from a VA facility, if the physician is an employee.
2) If the physician will establish his or her own practice, the physician must submit a sworn statement committing to the full-time practice of clinical medicine for the required period, and describing the steps the physician has taken or intends to take to establish the practice;
3) Evidence that the physician will provide full-time clinical medical service in a medically underserved area and in a medical specialty designation by the HHS or in a VA-facility;
4) A letter from a U.S. federal agency or state public health department stating that the foreign physician’s work is or will be in the public interest. These letters should reflect knowledge of the physician’s qualifications and describe the agency’s background and interest in medical affairs.
4) Evidence of satisfaction or waiver of the J-1 home residency requirement, if the foreign physician has received medical training in the United States as a J-1 exchange visitor.
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