How to Prepare a Successful Request For
1. The EB2 National Interest Waiver petition (NIW) Petitioner Must Establish that the Waiver of the Job Offer Requirement Will Be in U.S. National Interest intrinsic
Section 203(b)(2) of the Immigration Act requires that all aliens seeking to qualify as having exceptional ability 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.
For many foreign nationals, the EB1 Extraordinary Ability and EB1 Outstanding Researcher or Professor are attractive immigration categories, because the immigrant visas are current for everyone in the EB1 categories, and the EB-1A also allows self petition without U.S. employer's sponsorship and even job offer. However, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field.", and EB1 Outstanding Researcher or Professor requires a "permanent" research or teaching job offer from a U.S. employer.
For many alien applicants, and also for people whose academic achievements are not quite sufficient for EB-1 applications, the EB2 National Interest Waiver category is a good choice. The regulation standards for NIW petition are somewhat lower than that of EB-1A and EB-1B, and it only requires the "exceptional ability" for NIW. Therefore, the EB2 National Interest Waiver is an attractive immigration category, because it also allows self petition without U.S. employer's sponsorship and even a job offer. No U.S. employer's sponsorship is required for NIW petition, thus an alien immigrant can self-petition the EB2 NIW with the USCIS.
Evidence must be submitted to support a Form I-140 petition for EB2 National Interest Waiver. Unlike the requirement for EB1 Outstanding Professor or Researcher Petition, in which an alien applicant must demonstrate that the alien is "recognized internationally as outstanding in the academic field", or the the requirement for EB1 Extraordinary Ability, in which an alien applicant must have garnered "sustained national or international acclaim in the field of endeavor", the applicant for NIW is only required to be in an area of substantial merit and national importance, and the applicant's work should benefit the U.S. national interest.
However, an alien seeking to meet the EB2-National Interest Waiver (NIW) requirements must show significantly more than just "prospective national benefit" required of all aliens seeking to qualify as having exceptional ability. The burden rests with the petitioner to establish that the waiver of the job offer requirement will be in the national interest. Each case will be judged on its own merit.
To process the Form I-140 petition and determine the eligibility for EB2 National Interest Waiver petition, additional information may be required by USCIS. The Request For Evidence notice provides suggested evidence that could be submitted in consideration of each requested item. The petitioner should provide additional evidence that is believed to satisfy the request. The petitioner is responsible for providing that best shows that the NIW beneficiary meets all requirements. Evidence must show that the beneficiary was eligible for the requested benefit when the Form I-140 petition was filed.
2. The Request For Evidence (RFE) for EB2 National Interest Waiver Petition
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.
The statutory provision for the EB2 National Interest Waiver petition requires that the alien applicant will substantially benefit the national economy, cultural or educational interests, or welfare of the United States prospectively, because of the alien's exceptional ability in the sciences, arts, or business. The regulation defines exceptional ability in the sciences, arts, or business as having a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
After the NIW I-140 petition submission, it is not rare that an alien applicant receives a Request For Evidence (RFE) letter from a USCIS Service Center. There are a lot of complaints with reference to the significant USCIS delays in sending out Requests for Evidence. The USCIS presumes that it is in the U.S. national interest for most foreign nationals seeking Green Cards to undergo Labor Certification process. On the other hand, certain advanced degree professionals or those who are considered "exceptional" and who have demonstrated a significant impact on their field, may be eligible for the EB1 or National Interest Waiver (NIW) petition.
Typically, before the USCIS issues a denial in any type of case, it first sends a Request for Evidence (RFE). Receipt of an RFE enables the alien beneficiary the opportunity to present additional evidence, for a fair and accurate determination. This procedure is in keeping with the purpose of the NIW - to create an avenue to obtain permanent resident status for an alien who demonstrates that his or her work will substantially benefit the U.S.
The following is an example of RFE notice from USCIS for a NIW application:
This officer is unable to complete the processing of your application without further information. Please read and comply with the request below, then submit the evidence to the above address. Include a copy of this letter and place the attached gold sheet on top of your documents.
The beneficiary's work is an area of substantial merit. However, it has not been established the National Interest would be affected if a Labor Certification was required. It has not been established the beneficiary's work has significantly impacted on his filed of study.
Please explain what the applicant has done above and beyond performing the routine, and normal duties that a Microchannel Reactor researcher performs during the course of their duties. You must establish the applicant has made an impact within their field.
Please clarify the number of citations the a applicant received regarding their work, since USCIS was unable to determine the number of citations the petitioner received.
- How many overall citations has the petitioner received?
- Of these citations, how many citations were for articles the petitioner first-authored?
- How many were independent citations, and how many were cited by the petitioner?
Please explain how the applicant has significantly impacted their field. Based on the evidence received the applicant has simply conducted research within their field, and has not made any breaking discoveries.
3. How to Reply RFE Request of "Wide Effect on the Field" for EB2 National Interest Waiver Petition?
When an USCIS adjudicator is unable to complete the processing of an EB2 National Interest Waiver petition without further information, it will send out a Request For Evidence notice to ask required evidence. The alien applicant should read and comply with the request carefully, then submit the evidence to USCIS, and including a copy of RFE letter and place the attached gold sheet on top of the submitted documents.
For Form I-140 petition in the EB2 National Interest Waiver category, the alien applicant should be a member of the professions holding an advanced degree or an alien of exceptional ability, and the petitioner must establish that the national interest would not be served if the petitioner was required to obtain a labor certificate for the proposed employment.
If the alien applicant is a researcher, the petitioner should submitt evidence establishing he or she authored several scientific publications. The petitioner also submitted reference letters from individuals working in his or her field of specialty attesting of the significance of his or her work.
The submitted evidence should establish that the petitioner's work has yet had any wide effect on his or her entire field. While adding to the overall body of knowledge in a given field is important, it also should establish that the petitioner is eligible for national interest waiver.
Also, the petitioner must 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' previous work influence on the field as a whole must justify projections of future benefits to the national interest. Reference letters without any independent and objective evidence would not suffice to establish prior achievement.
4. The "Two-Step Evaluation Approach" for EB2 National Interest Waiver Petition and the Request For Evidence Notice
The burden of NIW petition approval rests on the petitioner. The petitioner should provide substantial evidence to support the EB2 National Interest Waiver Petition. If the alien applicant is qualified, then the success depends largely on the way the application is presented to USCIS.
The USCIS' Two-Part Evaluation approach adjudication method applies to EB2 National Interest Waiver Petition. The evidence listed in the NIW regulations serve only as guidelines for the petitioner. Eventually, the submitted evidence should establish that the "proposed benefit will be national in scope", and the "national interest would be affected if a Labor Certification were required."
USCIS adjudicators will use the Two-Part Evaluation process to evaluate the submitted evidence with a NIW petition. First, USCIS adjudicators will evaluate the submitted evidence to determine which evidence meets the regulatory criteria, by a preponderance of the evidence. Second, USCIS adjudicators will evaluate the submitted evidence together, for the final merits determination regarding the total requirements for the EB2 National Interest Waiver immigrant visa category.
Once USCIS determines that the petitioner has provided satisfactory evidence for the requisite number of prongs, the second phase of review requires the adjudicator to weigh the evidence against the required high level of expertise for the visa category. It is in the second phase of the review where the evidence can be evaluated to see if, cumulatively, it proves by a preponderance of the evidence that the alien applicant's work is in U.S. national interests.
When making a final decision regarding NIW eligibility, USCIS will first evaluate the evidence submitted by the petitioner to determine which regulatory criteria the beneficiary meets in Part One of the analysis. If the petitioner establishes that the beneficiary has met the NIW criteria, then USCIS will evaluate all of he evidence in the record to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the a preponderance has the acclaim of U.S. national interest , and that the beneficiary ‘s achievements have been recognized in the field of expertise.
This is the petitioner’s responsibility to meet the legal burden of proof to establish eligibility in all respects. Whenever a alien applicant makes an application for an immigrant benefit, the petitioner shall bear the burden of proof to establish eligibility for the benefit sought. Therefore, the petitioner must prove, by the preponderance of the evidence, that the beneficiary is fully qualified for the benefit sought.
Simply presenting evidence which relates to the EB2 National Interest Waiver criteria does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB2 National Interest Waiver classification, the additional evidence may be requested by USCIS, or called as the Request For Evidence (RFE) notice.
5. The Decision of Matter of Dhanasar - the EB2 National Interest Waiver Petition and Its Adjudcation Standard
After nearly two decades, the USCIS Administrative Appeals Office (AAO) has eliminated the much criticized NYSDOT standard for EB2 National Interest Waiver immigration petitions (EB2 NIW), and replaced it with a more realistic one for U.S. Green Card applicants.
The Administrative Adjudications Office of U.S. Citizenship and Immigration Services (USCIS) has issued a precedent on December 27, 2016, which is an administratively binding decision of Matter of Dhanasar. It revises the previous NIW petition criteria, and expands the grounds for pursuing U.S. permanent residence under the National Interest Waiver immigration category. This decision supersedes the previous decision of Matter of New York State Department of Transportation (NYSDOT, 1998).
The AAO described the 1998 NYSDOT standard that is being vacated as follows:
1) the NYSDOT framework looks first to see if a petitioner has shown that the area of employment is of “substantial intrinsic merit.”
2) next, a petitioner must establish that any proposed benefit from the individual’s endeavors will be “national in scope.”
3) finally, the petitioner must demonstrate that "the U.S. national interest would be adversely affected, if a labor certification were required for the foreign national."
Mr. Dhanasar is an aerospace engineer engaged in research and teaching, and he is self-petitioned for a National Interest Waiver. In Dhanasar's case, the AAO notes first that the word “intrinsic” in NYSDOT case is too subjective. The AAO also believes the second prong of NYSDOT case requiring the benefit to be “national in scope” is construed too narrowly, by focusing on the geographic impact of the benefit.
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.
Thus, the AAO is vacating NYSDOT standard, and adopting a new framework that it believes “will provide greater clarity, apply more flexibly to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.”
Under the Dhanasar standard, an NIW petition case may be approved if
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.
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 AAO does note that USCIS still has the discretion to deny. However, it seems unlikely that one would win the third prong of Dhanasar and lose on a discretionary basis since the third prong is itself 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.
6. How to Meet the Three-Prong Test Requirements in Your Response of Request For Evidence
For years, the USCIS had declined to issue a comprehensive and controlling definition of national interest, and instead had advised the USCIS Service Centers to treat petitions involving National Interest Waiver requests on a case-by-case basis.
The USCIS has issued a precedent decision that restricts the National Interest Waiver petition. The NIW has helped expedite Green Card application process for many aliens whose work is deemed to be in the "national interest." The national interest waiver method of obtaining a Green Card was preferable to other avenues in many cases, because it allowed employers to bypass the Labor Certification process, a long and cumbersome process in which employers must show that there are no U.S. qualified workers for the alien's position.
The USCIS' Administrative Appeals Office (AAO) had issued several non-binding decisions after enactment of the national interest waiver program that elaborated on the applicable standard. The AAO took the position that the alien's admission must provide a benefit to the country beyond a "prospective national benefit" which all exceptional ability and advanced-degree aliens must establish prior to their admission. In the years immediately after the enactment of the national interest waiver provision, the USCIS had granted such waivers with some frequency relying in part on these early AAO decisions.
USCIS Administrative Appeals Office overturned the old NYSDOT standard of adjudication for national interest waiver petitions, and replaced it with a legal test that is more permissive. The decision for Matter of Dhanasar vacated the longstanding Matter of New York State Department of Transportation. The USCIS has designated the decision as a precedent, and it will be followed by USCIS adjudicators.
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.
The Dhanasar case decision opens the NIW category to many alien applicants. The decision reviews the history of NIWs and what did and didn’t work in the past. USCIS is optimistic that this new decision will make NIW green cards more accessible in general. Here are the few aspects of the new decision:
1) The case allows using the person’s degrees and experience. This benefits highly educated alien applicants.
2) The case allows teaching as evidence. So an applicant who also teaches in his or her field will now get a boost in the NIW category.
3. The benefit to the U.S. interest can be local, such as helping to create jobs in a depressed area, or creating a specialized local product. Alien applicants can argue the impact of their work on the economy, starting regionally, and then adding national implications if applicable.
4) Dhanasar decision specifically notes that entrepreneurial work can lead to an NIW petition approval. This has been on the USCIS website for several years, but now it is even clearer. The decision notes that “evidence that the endeavor has significant potential to employ U.S. workers, or has other substantial positive economic effects may well be understood to have national importance.”
5) The decision also notes that alien applicants' venture does not need to succeed: “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed.” The business just needs to be “well positioned to advance the proposed endeavor.”
6) The decision requires an NIW applicant to show that it would be “impractical” to go through the normal labor certification process. The labor certification is the most common form of employer-sponsored Green Card application. But for some alien applicants, it can be difficult because labor certification requires a full time job offer at a competitive salary, and evidence that the company has the ability to pay that salary.
This framework of Dhanasar decision for national interest waivers opens the door of U.S. permanent residence to an expanded range of foreign nationals. As always, NIW immigration category is a chance for creativity in showing a foreign national’s talents.
The RFE process creates the opportunity for an alien applicant to emphasize evidence already in the record that the USCIS adjudicator may not have fully considered, to clear up misunderstandings, and to clarify issues and facts. The RFE also give an opportunity for alien applicants to provide additional evidence through the RFE process.
The Dhanasar third prong of EB2-National Interest Waiver petition is difficult to satisfy in light of the USCIS bias toward the Labor Certification process. For this test, the alien applicant needs to prove that the alien’s work benefits the national interest so much as to outweigh the competing interest in preserving the labor certification process in that case. Undoubtedly this test would take into account many factors, most of which would be difficult to objectively measure or quantify.
Here, strong testimonial letters are key to a successful RFE response. USCIS requires that a foreign national must present national benefits so great as to outweigh the national interest in preserving U.S. jobs for U.S. workers through the Labor Certification process.
7. Detailed Analysis of How to Meet the Prong Test Three for National Interest Waiver Petition
The third prong of EB2 National Interest Waiver petition is the difficult requirement to satisfy - "On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification." 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.
This requirement of National Interest is clearly indicated in USCIS description:
"The petitioner seeking the waiver must persuasively demonstrate that the national interest would be affected if a labor certification were required for the alien. The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national benefit to outweigh the national interest inherent in the labor certification process."
Therefore, the alien applicants should prove that it would be 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.
For detailed analysis of three-prong test for EB2 National Interest Waiver petition, please also see Detailed Analysis of EB2 National Interest Waiver Petition Criteria
8. Considerations of Request For Evidence (RFE) Response for a National Interest Waiver Petition
In an NIW petition's RFE response, 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 Dhanasar case:
- It must be shown that the foreign national’s proposed endeavor has both substantial merit and national importance;
- It must be shown that the foreign national is well positioned to advance the proposed endeavor;
- It must be shown 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.
The NIW applicants 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.
The EB2 National Interest Waiver regulation and Dhanasar case also requires that an alien applicant should establish exceptional ability for the EB2 immigrant visa category, and achieved significant contributions in the field. To satisfy these requirements, an EB2 National Interest Waiver petition should include substantial supporting evidence which includes:
1) Past Achievements: the submitted evidence should include a history of substantial contributions and achievements in the field, and the critical role played by the alien applicant in important projects. The substantial contributions and achievements should be tangible, and can indicate the alien's “track record of success.“
2) Specific Job Description: A job offer in United States is not required for EB2 National Interest Waiver petition. But if a job is offered by an U.S. employer, a detailed job description will help the EB2 NIW petition case, if the position requires exceptional ability and superior credentials. The submitted evidence can also include the alien's job related activities and crucial role played in the activities which could benefit the U.S. national interest.
3) Recommendation Letter or Reference Letters: It is crucial to submit reference letters or recommendation letters from experts in the field, which will help to establish the alien applicant's qualifications for the EB2 National Interest Waiver petition. The reference letters or recommendation letters should focus on the specific details and underline the benefit of the activity, and the crucial nature of the alien applicant's role.
According to USCIS, the following evidence may present a strong case that an alien applicant is considered exceptional:
1) presentations at academic symposia;
2) published articles in scholarly journals;
3) testimony from other experts on the alien's contribution to the field;
4) a number of entries in a citation index citing the aliens work; or
5) participation by the alien applicant to judge the work of other professionals.
During the RFE replying process, the alien applicants should also bear in mind the following general considerations with respect to the requests for national interest waivers:
1) An alien seeking NIW who has publications, patents, awards, reviewing other's work, and other achievements are more likely to satisfy the third prong of the Dhanasar standard. These items generally show that the alien applicant will serve the national interest to a substantially greater degree than minimally qualified U.S. citizen colleagues, since the minimally qualified peers may not have won awards or publications, or been asked to review other's work, etc.
2) An alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education, which could be articulated on an application for a labor certification.
3) General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the U.S., cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic issue.
4) While the national interest waiver hinges on prospective national benefit, it clearly must be established that the alien's past record justifies projections of future benefit to the national interest. The petitioner's subjective assurance that the alien will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the alien has few or no demonstrable achievements.
5) The basis for the National Interest Waiver may not be the existence of a local labor shortage. The mere fact that the alien beneficiary might fill a locally needed position, irrespective of the positive effect of such activity, does not qualify the activity as being in the national interest. While there exists a generalized national interest in providing jobs to all work authorized persons, the national interest waiver is a waiver of the labor certification requirement - it is not a substitute for this requirement. Congress specifically created the labor certification process in order to test the domestic local labor market. A shortage of qualified workers in a given field does not constitute grounds for a national interest waiver.
All non-English language documents must have an English translation for the pertinent parts of the documents that help to establish eligibility. If you would like USCIS to consider evidence that is written in a foreign language, you must submit English language translation for the parts of the document that could help to establish eligibility for the requested benefit. The translator must certify that:
- The translation are accurate and complete, and
- The translator is competent to translate from the foreign language into English.
9. Suggestions for Preparing Request For Evidence (RFE) Response for a National Interest Waiver Petition
For a National Interest Waiver to succeed, an alien's work must involve an activity of substantial merit and and national importance. This test is relatively easy to apply, and many alien applicants can draw successful arguments relating the alien's activities to the level of possessing merit. Furthermore, the benefits of the activity must be national importance. Again, this test can be easily surmountable by alien applicants in many occupations. The third test is the difficult one.
Deciding whether an alien applicant's achievement is recognized in a field is considerably harder. The applicants who can be deemed substantially better than their U.S. citizen peers are also likely to have testimonials from independent experts at the high level, ideally from officials of government agencies and highly reputable private companies and organizations in their fields.
NIWs are successful only for foreign nationals who meet all three tests. There has been no evidence that USCIS deems any one of the three tests to be more important than the others. Rather, an alien applicant must meet a minimum threshold on each standard. To replying the RFE requests, an alien applicant should make sure to include additional independent letters from experts in the field who have not collaborated directly with the alien. A combination of additional letters from experts and collaborators who describe the beneficiary's reputation in the field, along with a few other letters from independent references who know the beneficiary's work via their conference presentations or publications, is the best recipe for RFE success.
USCIS Service Centers have indicated that the following factors are also used in evaluating an applicant's RFE response of National Interest Waiver petition:
1) Those seeking qualification for a waiver of labor certification based on services considered in the national interest must show "prospective national benefit" required of all aliens seeking qualification as exceptional. The NIW applies only to aliens who will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States.
2) The National Interest Waiver petitions require that the emphasis rest with the overall value and potential of the alien beneficiary's individual contribution to the U.S., not the fact that they are working in a field of "high national interest." The alien may qualify by being found to be a "key" or "critical" member of a team, if it can be shown that the team function would be severely impaired without this member. Merely working in an area of national interest does not necessitate a finding of national interest qualification.
3) USCIS highly recommends the submission of additional testimonial letters from substantial, recognized national or international organizations/institutes/ government agencies with the expertise to definitely say that the work or contribution of the alien beneficiary truly is in the national interest. The authors of these independent testimonial letters should clearly state how they came to be familiar with the alien's work.
10. Get Additional Reference Letters for Your Request For Evidence (RFE) Response of a EB2 National Interest Waiver Petition
For the Request For Evidence response of an EB2 National Interest Waiver petition, the alien applicant should get additional reference letters or recommendation letters from recognized experts in the field to support the pending NIW petition case. The additional reference letters should come from independent experts outside the alien applicant's circle. The additional reference letters should clearly indicate the alien applicant's significant role in an area of substantial merit and national importance, and the work will benefit the nation as a whole.
In order to review the alien’s significant role in an area of substantial merit and national importance, USCIS adjudicators will consider the additional reference letters from the experts in the field for the alien’s work and contributions. The reference reference letters that specifically indicate how the alien applicant has contributed to the field would help the response of Request For Evidence for a EB2 National Interest Waiver petition. But if the additional reference letters do not include specifics and simply use hyperbolic language may not add help the response of Request For Evidence notice for an EB2 National Interest Waiver petition.
Strong recommendation letter or reference letters are key to a successful EB2 National Interest Waiver case. A foreign beneficiary should obtain strong letters from both the foreign beneficiary's “inner circle“ and“ outer circle“ of peers. The foreign national's inner circle includes those he or she has directly worked with either in academia or in business. While these letters are often the most glowing, they are also the most suspect since they are possibly biased.
The following is some guidelines for whom you should turn to for recommendation letters
1) Supporting letters from experts or authorities have more weight: Generally, individuals recognized as authorities or experts in the field are given greater weight. A statement should be included in the support letter that establishes the qualifications of these individuals to judge the alien's work.
2) Supporting letters from closely-related or undistinguished persons have little weight: Support from other employees of the same petitioner or organization that is currently employing the foreign beneficiary or seeks to employ the foreign beneficiary have been given little or no weight on the basis that they lack objectivity. Similarly, testimonial letters from undistinguished colleagues or former college instructors have been subject to greater scrutiny than letters submitted by high-level officials of recognized major organizations.
3) A recommendation letter from an objective third party is viewed in a more positive light: Moreover, objectivity is one of the factors considered by the USCIS. Letters of support from other employees of the same petitioner or organization that is currently employing the foreign beneficiary or seeks to employ the foreign beneficiary may be rejected on the basis that they lack objectivity. However, if your professor or employer has substantial knowledge about your accomplishments and can provide strong reference, they may be great candidate of recommendation letters.
The additional reference letters or recommendation letters for Request For Evidence response should indicate that the alien applicant seeking a national interest waiver satisfies the three-prong test of Dhanasar case:
1) He or she seeks work in an area of substantial merit and national importance: The alien must play a significant role in an area of substantial merit and national importance, and must not be simply a minor constituent who took part thereof.
2) The candidate's proposed work will benefit the nation: The alien should position to advance the proposed endeavor. 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 outweigh the national interest in using the Labor Certification process: 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 will outweigh the nation's interest inherent in completion of the Labor Certification process.
The USCIS believes that an alien applicant working in an area of substantial merit and national importance with exceptional ability should have unsolicited materials reflecting the exceptional ability acclaim. Thus, additional reference letters from independent experts should carry more weight for the response of NIW Request For Evidence, and they are proof of the alien's accomplishments and exceptional ability.
If an alien applicant's contributions in the field are not praised outside the circle of acquaintances, then it could not be concluded that the alien applicant has earned exceptional ability recognition and the alien's work will benefit the nation. Thus USCIS may not give much weight to additional reference letters from the alien's circle of colleagues, for his/her contributions in the field.
11. The Request For Evidence (RFE) Strategies of National Interest Waiver Petition 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.
12. The Request For Evidence (RFE) Strategies of National Interest Waiver Petition for Aliens with no Scholarly Publications or No Citations
1) The Request For Evidence (RFE) 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 Request For Evidence (RFE) 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.
The Dhanasar case decision opens the NIW category to entrepreneurs. The decision reviews the history of NIWs and what did and didn’t work in the past. The benefit to the U.S. interest can be local, such as helping to create jobs in a depressed area or creating a specialized local product. Entrepreneurs can argue the impact of their work on the economy, starting regionally, and then adding national supply chain implications if applicable.
Dhanasar decision specifically notes that entrepreneurial work can lead to an NIW petition approval. This has been on the USCIS website for several years, but now it is even clearer. The decision also notes that the entrepreneurial venture does not need to succeed.
The decision requires an NIW applicant to show that it would be “impractical” to go through the normal labor certification process. The labor certification is the most common form of employer-sponsored Green Card application. But for entrepreneurs, it can be difficult because labor certification requires a full time job offer at a competitive salary, and evidence that the company has the ability to pay that salary.
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.
3) The Request For Evidence (RFE) 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."
13. Special Situation Considerations for Request For Evidence (RFE) of National Interest Waiver Petition
1) 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.
2) Quality of the Evidence: The USCIS' decision on Dhanasar 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.
3) Entrepreneurs and 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.There are many USCIS changes aimed at providing needed avenues for entrepreneurs and investors within existing immigration categories. One important and promising action item intended to open U.S. immigration opportunities for entrepreneurs and investors was finalized in December 2016. This item is the clarification of the National Interest Waiver (NIW) standard, and the elimination of often insurmountable requirements for qualification for this valuable
The NIW category provides an avenue for self-sponsorship of U.S. permanent resident (“Green Card") status. Since 1998, eligibility for this selective, discretionary category has been based upon criteria set forth in Matter of New York State Department of Transportation (NYSDOT, 1998). This NYSDOT case was vacated by USCIS Administrative Appeals Office (AAO) on December 27, 2016. The new NIW interpretive framework is set out in an AAO precedent decision, Matter of
Dhanasar. The revised Dhanasar standard is likely to benefit entrepreneurs, investors, and other NIW applicants.
However, USCIS suggests that the self-employment factor will be considered if it could establish that the alien applicant will play a critical role in furthering a significant national goal. The Dhanasar standard is a significant departure from the NYSDOT standard, and it would open opportunities for valuable contributors, including entrepreneurs, investors, inventors, researchers, artists, and those in business fields which do not fit well within the standard labor certification based Green Card application process.
4) 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.
14. Get Help for Your RFE Response, and Eventually Obtain Your Green Card
If you get a Request For Evidence (RFE) notice for your NIW petition from an USCIS Service Center, it is necessary that you must work hard to provide requested evidence in a short time, and persuade the USCIS adjudicators to approve your case. It is critical to appropriately and proficiently reply the Request For Evidence. Incorrect response of the RFE will directly result in your I-140 petition rejection.
To help you replying the RFE, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence for EB2-National Interest Waiver Petition". In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, sample reference letters, and more. With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of NIW petition, and eventually get your Green Card.
To further help your RFE response, we also provide a Premium Petition Service Program for our customers. Please visit http://www.greencardapply.com/general/premium.htm for more information.
15. The "Notice of Intent to Deny" and File an EB2 National Interest Waiver Petition Again
A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.
If your EB2 National Interest Waiver petition is denied by USCIS, you can file an EB2 National Interest Waiver petition again, or file in other categories. The immigration law does not restrict the time you can file an EB2 National Interest Waiver petition again after the rejection of your previous NIW application. A previous rejected NIW petition does not bar you from submitting another NIW petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.
16. The Motion to Reopen or Motion to Reconsider after Form I-140 Immigrant Visa Application Denial
Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:
* The requested evidence was not material;
* The required initial evidence was submitted with the petition;
* The request for appearance or additional evidence was complied with during the allotted period, or
* The request for evidence or appearance was not sent to the address of record.
As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.
A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.” Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.
17. An Example of USCIS RFE Notice for a National Interest Waiver Petition
The following is an example of RFE notice from USCIS for an National Interest Waiver petition:
This office is unable to complete the processing of your petition without further information. Please read and comply with the request below, then submit the evidence to the above address. Include a copy of this letter and place the attached gold sheet on top of your documents.
The petitioner has filed Form I-40 for an alien applying for a National Interest Waiver who is a member of the professions holding an advanced degree or an alien of exceptional ability.
You must establish that your proposed employment has substantial merit. You submitted a letter from the Department of State Health Services and seven letters from friends and colleagues who speak of your employment. However, the evidence on record fails to show that your proposed employment as a Research Associate is of substantial merit. Please submit evidence to establish that your activities are of substantial merit. This evidence might show that the 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;
You have not establish that your proposed employment has national importance. The signatories of the letters you submitted speak of the influence that you have in your research projects. However, the evidence on record fails to show that your work will bring benefits to the United States and that the benefits are national importance. Please submit evidence that your contributions will impart national benefits.
National Interest Waiver
You must establish that the national interest would not be served if you were required to obtain a labor certification for the proposed employment. You failed to submit any evidence to establish that the national interest would be affected if you were required to go through the labor certification process. Please submit evidence to establish that your past record justifies projections of further benefit to the nation. The evidence on record fails to show that you have influenced the field by acquiring the necessary knowledge or exceptional skills.
You must persuasively demonstrate that the national interest would be affected if a labor certification were required. You must establish that you have a past record of specific prior achievement with some degree of influence on the field as a whole.
You must establish, in some capacity, your ability to serve that national interest to substantially greater extent than the others in the field. For example, you may submit copies of your 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; and awards for work in the field. Any awards for work in the field must be accompanied by a statement form the institution that granted the award, commenting on the number of awards given, the frequency of the awards, the criteria for granting the award, and the number of individuals eligible to compete for the award.
You must submit the requested information before the deadline. Failure to do so may result in the denial of your petition. Please note the required deadline for providing a response to this Request For Evidence (RFE). The deadline reflects the maximum period for responding to this RFE. However, since many immigration benefits are time sensitive, you are encouraged to response to this request as early as possible, but no later than the date provided on the request.
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