Liu Yu and Bateman Law Firm

NIW


1.     Background and Overview

 

Most employment-based permanent residence processes require the employer to go through the labor certification process with the U.S. Department of Labor (DOL) to demonstrate that the foreign national is not taking a job away from a qualified U.S. worker. However, the labor certification process can be time consuming and costly for potential employers. Individuals in the EB-1 visa category, including aliens of extraordinary ability, outstanding professors and researchers, and multinational managers and executives are exempt from labor certification.

 

In addition to these EB-1 exemptions, there also exists a waiver of the job offer requirement, and thus the labor certification process, for certain individuals in the EB-2 visa category. This waiver is known as the National Interest Waiver (NIW), which was enacted in the Immigration Act of 1990 (IMMACT 90). The legislative provision authorized the waiver of the labor certification requirement when a foreign national’s services in the sciences, arts, professions, or business are sought by an employer and such service is deemed to be in the U.S. national interest. In 1999, Congress amended the NIW by adding a specific process for physicians working in shortage areas or at a Veterans Affairs Medical Center, This is commonly referred to as the Physician National Interest Waiver (PNIW).

 

Therefore, under the EB-2 category, an individual may seek a waiver of the labor certification by establishing that:

 ·        His or her services in the sciences, arts, professions, or business are deemed to be in the national interest; or

·        He or she is a physician working in federally designated shortage areas or veterans’ facilities and meeting certain criteria.

 

If qualified for the waiver, a foreign national can petition on his or her own behalf – an attractive immigration advantage for those who qualify. Both NIW and PNIW fall within the EB-2 category, but have a heightened evidentiary standard that a petitioner must meet to qualify for a waiver, as compared to other types of EB-2 petitions. The procedure is to file the Form I-140, Immigrant Petition for Alien Worker, together with corresponding evidence to establish that the foreign person's admission to the United States for permanent residency would be in the national interest.

 

  2.     Qualifying for the EB-2 Classification

 

Prior to requesting the National Interest Waiver, a foreign national must first establish eligibility for the EB-2 category as either a member of the professions holding an advanced degree, or by demonstrating an exceptional ability in his or her field of endeavor.

 

Members of the Professions Holding an Advanced Degree:

 

An advanced degree is defined as any United States academic or professional degree, or an equivalent foreign degree above that of baccalaureate. If the foreign national’s specialty usually requires a doctoral degree, then the foreign national must have earned such degree. The beneficiary must meet these requirements as of the time the application is filed.

 

The foreign national must also be a member of the “professions”. Occupations such as architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries, as well as accountants and pharmacists are traditionally deemed as professions. The term ‘profession’ is also constantly expanding in our modern society, consistent with the greater knowledge and specialized training that many occupations now demand.

 

In addition, the petition must also demonstrate that the position and the industry normally requires an advanced degree or the equivalent.

 

Individuals of Exceptional Ability in the Sciences, Arts, or Business:

 

Exceptional ability is defined as a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. The foreign national’s services in one of the qualifying fields should also substantially and prospectively benefit the national economy, cultural or educational interests, or welfare of the United States.

 

To establish exceptional ability, the petition should include at least three of the following types of evidence:

 

1)     An official academic record showing that the foreign national 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)     Documentation of 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 foreign national has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

5)     Evidence of membership in professional associations;

6)     Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

 

If the above standards do not readily apply, the petitioner may submit comparable evidence to establish eligibility.

 

The criteria for exceptional ability are to some extent similar to the criteria for EB-1A extraordinary ability petitions. The petitioner may therefore find it helpful to review our EB-1A extraordinary ability analysis of the individual criteria. In some cases USCIS treats the petition almost the same as an extraordinary ability petition, though generally such is a far more generous approach.

 

As with EB-1A extraordinary ability adjudication, USCIS will also apply the Kazarian two-step analysis to exceptional ability. First, evidence required by the regulations is evaluated to see if at least three criteria are met. Then, USCIS will make a final merits determination of whether the foreign national has established, by a preponderance of the evidence, a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

3.     Establishing National Interest - Development of NIW Case Law

 

After eligibility for EB-2 classification has been established, the examiners will proceed to consider the National Interest Waiver, if requested.

 

Since the passage of IMMACT 90, USCIS has not clarified NIW requirements and each case has been adjudicated on its own merits. In 1998, the precedent decision in Matter of New York Department of Transportation (NYSDOT) articulated the following three prongs for establishing a national interest:

 

·        The field of endeavor must be in an area of substantial intrinsic merit;

·        The proposed benefit will be national in scope; and

·     The petitioner must demonstrate that the national interest would be adversely affected if a labor certification were required for the foreign national. Or, the foreign national will  serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The foreign national must clearly present a significant benefit to the field of endeavor.

 

For years, USCIS applied the NYSDOT standard to adjudicate NIW petitions. However, the NYSDOT standard was confusing and restrictive, and deterred many people from choosing this category as a pathway to lawful permanent residence status.

 

Then, after almost two decades, in December 2016, the AAO issued another precedent decision in Matter of Dhanasar. In this case, the AAO significantly revised the NIW framework and announced that the new standard would “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 U.S.”

 

Under the new framework, 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 the following three criteria:

 

·        The proposed endeavor has both substantial merit and national importance;

·        The foreign national is well positioned to advance the proposed endeavor; and

·        On balance, it would be beneficial to the United States to waive the requirements of a job offer and of a labor certification.

 

Thus, a foreign national may self-petition without a sponsoring employer if he or she can establish these three qualifications.

 

4.     The NIW Three-Prong Test

 

The new, more flexible NIW adjudication standard outlined in Matter of Dhanasar is a welcome development.  If USCIS officers adjudicate NIW petitions according to this revised standard, more applicants should be able to obtain permanent residence on this basis. Applicants are advised to consider the following when seeking to prove the three prongs:

 
·        1st Prong:  Proving Substantial Merit and National Importance

 

In Matter of Dhanasar, the AAO recognized that the prior interpretation of the NIW test was not useful in determining whether someone’s work has substantial merit and national importance, given that pure science and research would offer benefits to the United States. It acknowledged that an endeavor’s merit may be established without showing the potential to create a significant economic impact. The endeavor’s merit may be shown in a variety of fields, including in business, entrepreneurialism, science, technology, health, culture or education.

 

The AAO further clarified that USCIS will no longer evaluate prospective impact solely in broad geographic terms, and that a localized geographic benefit may still be in the national interest of the United States. The new standard focuses on national importance as opposed to national scope. This means that foreign nationals working in areas of local or regional impact can now qualify for the NIW. 


·        2nd Prong:  Whether the Foreign National is Well Positioned to Advance the Endeavor

 

The second prong focuses on the foreign national. In revising this second prong, the AAO understood that just because an entrepreneurial or innovative undertaking may ultimately fail does not mean that it may not be in the national interest. Thus, Petitioners are not required to demonstrate that their endeavors are more likely than not to ultimately succeed.

 

Nevertheless, petitioners must establish that they are well positioned to advance the proposed endeavor. To determine whether someone is well positioned to advance the endeavor, USCIS will consider factors such as the individual’s education, skills, knowledge, achievements, future activities and the interest of other relevant entities or individuals.

 

·        3rd Prong: Whether it is Worth to Waive the Job Offer and Labor Certification Requirements

 

The third prong 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. By creating the National Interest Waiver, Congress recognized that in certain cases the benefits from the labor certification process can be outweighed by other factors that are also deemed to be in the national interest.

 

The AAO recognized that the labor certification requirement, which requires employer sponsorship and testing of the labor market, was particularly difficult for some self-employed individuals and those who own shares in their companies. The revised test offers petitioners the opportunity to demonstrate that, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions, and that the national interest in the foreign national’s contributions is urgent enough to warrant waiving the labor certification process.

 

Unlike the test under NYSDOT, the current standard does not require a showing of harm to the national interest or a comparison with U.S. workers in the petitioner’s field.  The new, more flexible test, which can be met in a range of ways, can be applied to a greater variety of individuals.

5.     The NIW Petition Process

 
The NIW requires a series of forms and supporting documentary evidence. As discussed above, there is no labor certification process requirement. However, since the NIW is within the EB-2 category, which generally requires labor certification, the regulations require that the labor certification Form ETA-9089 be submitted in any EB-2 case. Thus, while applicants do not need to actually request a labor certification from the DOL, they do need to submit a completed ETA-9089 form with their NIW petition directly to USCIS.

 

Besides filing the relevant forms, the petitioner should include his or her credentials and supporting evidence in the NIW petition, including:

 

·        Evidence establishing advanced degree or exceptional ability, and

·        Evidence establishing eligibility for the waiver, as discussed in the previous section.

 

The supporting evidence for NIW petitions is to some extent similar to that of EB-1A extraordinary ability petitions. The petitioner may therefore find it helpful to review our extraordinary ability analysis of the individual criteria.

 

As long as immigrant visa numbers are current and immediately available, one may file the Form I-140, Form ETA 9089, concurrently with the Form I-485, Application for Adjustment of Status.

 

6.     Physician National Interest Waiver

 

As an alternative to the regular NIW, a Physician National Interest Waiver (PNIW) is available for clinical physicians who agree to work in a federally-designated underserved area or a Veterans Affairs (VA) facility.

 

To qualify under the PNIW standard, a physician must agree to work full time in an area designated by the U.S. Department of Health and Human Services (HHS) as having a shortage of health care professionals or at a facility under VA jurisdiction, and a federal agency or state public health department must determine that such work is in the public interest. The physician cannot obtain permanent residence until he or she has worked full-time for an aggregate of five years (not including any time spent as a J-1 physician) in such area or facility.

 

Specifically, one must establish the following to qualify for a PNIW: 


·        Full-time (40-hour per week) clinical medical practice;

·        Facility located in a Medically Underserved Area (MUA) or a Health Professional Shortage Area (HPSA);

·        Five-year service obligation, as confirmed by: (1) an employment contract or contracts totaling five years of qualifying employment signed within six months preceding the filing of the PNIW petition; or (2) the submission of evidence showing an intention to practice medicine in a solo practice for the duration of the required clinical service; and

·        Public Interest Statement issued by either the Department of Health of the state of qualifying employment or by the VA (if employment will occur at a VA facility) within six  months preceding the filing of the PNIW petition.

 

Originally, because shortage designations are based on ratios of primary care physicians to the general population, PNIW was limited to primary care physicians. Currently, after the development of interpretations of the regulations, both primary care and specialty physicians can self-petition for a PNIW, as long as they comply with the other applicable statutory and regulatory requirements.

7.     The PNIW Petition Process

 

The PNIW permanent residence process involves the following three steps:

 

·        Step 1: A physician must obtain an attestation from the appropriate federal agency or state Department of Health that the physician’s clinical work in a federally designated underserved area is in the public interest. An attestation should be obtained from each state Department of Health in which qualifying employment has occurred or will occur. If the employment is at a federal Veterans Administration facility, the attestation may come from that facility.

 

·        Step 2: The physician files the Form I-140, Immigrant Petition for Alien Worker. Physicians may self-petition if they can document five years of qualifying employment. Premium processing is not available for the PNIW category.

 

·        Step 3: The physician files the Form I-485, Application for Adjustment of Status. This application may be filed concurrently with the PNIW petition as long as an immigrant visa number is immediately available. The filing of the Form I-485 allows the physician and his or her dependents to seek work and travel permits during the pendency of the application.

 

In addition, physicians must comply with two mandatory reporting periods after filing the Form I-485. Physicians shall provide evidence to confirm continued progress toward completion of the five years of qualifying PNIW clinical service:

 

·        120 days after the second-year anniversary of the I-140 approval; and

·        120 days after the sixth year following I-140 approval (or within 120 days of the date that the five years of qualifying service are completed).

 

As noted above in the NIW context, qualified individuals should self-petition whenever possible, as a NIW that is not specific to a particular employer remains valid even if there are changes to the employment. In the PNIW context, a physician is permitted to open his or her own clinic, or change employers, as long as there are five years of full-time service in a designated underserved area. Note that such a change may require the filing of an amended PNIW petition to reflect the new employment location.

 

8.     Recent NIW Administrative Decisions

 

The following are recent AAO decisions regarding national interest waivers based on to the three-pronged analysis set forth in Dhanasar:

 

·        MATTER OF L-M-C-G (AAO Nov. 2, 2017)

 

The Petitioner, a physics teacher, sought EB-2 classification as a member of the professions holding an advanced degree, as well as a National Interest Waiver of the job offer requirement. The Petitioner received a master's of arts degree in education in the Philippines. The AAO agreed that the Petitioner qualified for classification as a member of the professions holding an advanced degree.

 

a.     Substantial Merit and National Importance.

The Petitioner stated that she intends to continue her work as a high school physics teacher serving students in science, technology, engineering, and math (STEM) disciplines. For evidence documenting the potential prospective impact of her proposed endeavor, the Petitioner maintains that her work teaching physics to high school students aims to impact the broader field of STEM education. She references several articles and research reports that discuss the shortage of qualified physics teachers in the United States. The AAO found that the Petitioner's proposed work implementing STEM techniques in a high school classroom has substantial merit as it provides valuable educational benefits to her students.

 

Next, the Petitioner claims that her proposed endeavor is of national importance because "the United States has a severe, long-term shortage of qualified physics teachers" and "the need for qualified physics teachers is greater now than at any previous time in history." However, the AAO found that the Petitioner’s evidence documenting her work at the local level is not sufficient to show that her work renders benefits that extend beyond her school or district to impact the field of STEM education more broadly and thus does not support a finding of national importance.  

 

b.     Well Positioned to Advance the Proposed Endeavor.

For this prong, the Petitioner submitted academic records, letters confirming her employment history, evidence of her credentials and certifications as a teacher, various awards and certificates, as well as letters of recommendation from
former colleagues, supervisors, students, and their parents, attesting to her teaching expertise and positive impact on student performance.  Overall, the AAO found that the evidence demonstrates the Petitioner's qualifications as an experienced teacher and satisfied the second prong.

 

c.      Balancing Factors to Determine Waiver's Benefit to the United States.

The Petitioner claims that she is eligible for a waiver due to her teaching qualifications, favorable recommendations and the impracticality of obtaining a labor certification. However, as the Petitioner has not established the national importance of her proposed endeavor as required by the first prong, the AAO found that she is not eligible for a national interest waiver and did not further discuss the balancing factors under the third prong. It is important to note that the adjudicators usually do not consider the 3rd prong under the Dhanasar analysis if the petitioner does not submit sufficient evidence for the first two prongs.

 

·        MATTER OF D-D-P (AAO Sept. 22, 2017)

 

The Petitioner, an entrepreneur, sought classification as an individual of exceptional ability in business, as well as a National Interest Waiver. As discussed above, to qualify as an individual of exceptional ability, the Petitioner must establish that he meets at least three of the six regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii).

 

a.     A degree, diploma, certificate or similar award relating to the field. While the Petitioner indicates that he is currently enrolled in a Master's degree program in business administration, he must also submit evidence to prove that he had completed his degree at the time of filing.

 

b.     Ten years of full-time experience. The Petitioner was requested to include letters from prior employers attesting to the Petitioner's experience in the field. The Petitioner maintains that he has provided evidence in the form of corporate governance documents and contracts that establish that he has been "self-employed" and owns a majority of controlling shares in five companies. However, the corporate formation documents and contracts that the Petitioner submitted did not list him as a “director” as he claimed. Further, the Petitioner’s resume and Form 9098 documenting his employment history indicated different employers. Thus, it is critical that relevant organizations provide letters in support of the Petitioner's eligibility for this criterion.

 

c.      A license or certification to practice the profession. The Petitioner claims that he meets this criterion based upon his receipt of a license as a salesman from a government agency. However, as the Petitioner is seeking eligibility as an individual of exceptional ability based upon his experience as an entrepreneur, he has not shown that a license to sell home improvement services relates to his stated profession. Petitioners should keep in mind that the license or certification in this criterion must be related to their field of endeavor.

 

d.     Salary or other remuneration which demonstrates exceptional ability. The Petitioner has submitted contracts varying in value for services to install solar infrastructure. However, many of the contracts do not reference the Petitioner and cannot be considered his "salary". In addition, remuneration noted in the contracts is ascribed to the contracting company, not the Petitioner individually. Thus, it is important to provide clear pay slips or other remuneration documents listing the Petitioner’s name.

 

e.     Membership in professional associations. The Petitioner claims that business registrations with the Federal Inland Revenue Service and the Pension Commission meet this criterion. However, the Petitioner must also offer evidence or information explaining how these entities qualify as professional associations.

 

f.       Recognition for achievements and significant contributions. The petitioner is supposed to provide letters or testimony from interested parties, such as peers, governmental entities, or professional or business organizations, attesting to his achievements or significant contributions to the industry or field.

 

Thus, for NIW petitioners, it is very important to submit thorough documentation to establish eligibility for EB-2 classification first, as a member of the professions holding an advanced degree, or as an individual of exceptional ability. If the adjudicators find that the petitioner did not qualify for the classification, eligibility for a national interest waiver will not be considered.

 

·        Matter of A-R-L (AAO Sept. 15, 2016)

 

The Petitioner, a small business owner, sought classification as an individual of exceptional ability as well as a National Interest Waiver. This case was adjudicated before Dhanasar, using the old NYSDOT standard. The case has a substantially higher chance of approval if reviewed under the current Dhanasar framework.

 

The Petitioner is the CEO and owner of a telecommunications and information technology systems (ITS) contracting company based in Texas. The AAO found that Petitioner has met at least three of the six exceptional ability standards under the regulation at 8 C.F .R. § 204.5(k)(3)(ii). For example, the Petitioner provided academic records, letters and employment verifications showing more than ten years of full-time experience, various noteworthy occupational certifications such as Registered Communications Distribution Designer (RCDD), and membership in professional associations that qualify him as an individual of exceptional ability in business.

 

a.     The field of endeavor

 

The AAO found that the Petitioner's work as an entrepreneur and owner of a small business that provides cabling, networking, security, and telecommunications services to its customers is in an area of substantial intrinsic merit, and thus meets the first prong under the NYSDOT analysis. This is similar to the substantial merit test under the first prong of the current Dhanasar standard.

 

Next, the AAO examined whether the benefits of the Petitioner’s work were “national in scope” as required under the second prong of NYSDOT. Here, the AAO looked at factors such as the business activities’ substantial impact beyond the region, economic impact, and influence on the field as a whole.

 

The Petitioner contends that providing information technology systems and related services is national in scope because internet access is considered interstate commerce. He submits letters which indicate that the provided cabling, networking, and telecommunication services have allowed their companies to access a broad scope of information, but more importantly, communicate and interact with suppliers, clients, corporate offices, donors, or consultants from across the country. The Petitioner further indicated that his work as an entrepreneur and owner of a small business offers a national benefit through the creation of job opportunities for U.S. workers, in one of the poorest regions in the United States.

 

Under the current standard, the Petitioner no longer needs to show national scope or economic impact, and should be able to establish national importance only and general impact on the field based on his evidence. Petitioners are also advised to include specific examples of how the petitioner's contributions have influenced the field.

 

b.     The Petitioner

 

With regard to his qualifications and past record of achievement, the Petitioner provided his training certifications, recognition certificates and awards. The AAO determined that while significant awards may serve as evidence of the Petitioner's impact on the field, the Petitioner did not demonstrate that his recognition certificates have more than institutional significance and are indicative of influence on the field as a whole.

 

Adjudication of this prong under the current Dhanasar standard is similar. Petitioners must establish that they are well positioned to advance the proposed endeavor, and provide evidence to show their education, skills, knowledge, achievements, future activities and the interest of other relevant entities or individuals.

 

Please note that eligibility for the underlying EB-2 classification does not demonstrate eligibility for the additional benefit of the waiver. Petitioners should be prepared to provide relevant documentation for both steps.

 

c.      Balancing of national interest

 

Here, the Petitioner contends that his past record in starting a successful ITS business, holding RCDD certification, creating local jobs, and generating over $1 million in revenue justifies projections of future benefit to the national interest. He further indicates that the process of obtaining a labor certification would be impossible, as he is the owner and founder of the petitioning company and a labor certification cannot be self-petitioned.

 

At that time, the AAO found that the inapplicability or unavailability of a labor certification cannot be viewed as sufficient cause for a national interest waiver. In addition, a petitioner still must demonstrate that he will serve the national interest to a substantially greater degree than do others in his field.

 

Fortunately, under the revised test of Dhanasar, petitioners are no longer required to demonstrate that he or she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. Petitioners are offered the opportunity to demonstrate whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is urgent enough to warrant waiving the labor certification process. Considering the facts in this case, it is much more likely that the Petitioner will meet the three prongs and be eligible for the waiver under the current framework.

 

9.     Conclusion

 

The Dhanasar standard has expanded eligibility for NIW petitions. It is important to remember that this category is not just for scientists and inventors, and this pathway to permanent residency is now more accessible to entrepreneurs, the self-employed, and others who can meet the required criteria. Nonetheless, the decision to approve an NIW remains a subjective determination by the USCIS adjudicator, so applicants are advised to provide compelling evidence, supported by extensive documentation, of how the work benefits the U.S. national interest.

 



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