Guidance for National Interest Waiver (NIW) Petition
by lirulaw

Guidance for National Interest Waiver (NIW) Petition

Below are some key requirements you must fulfill to demonstrate that you request to waive the job offer requirement and, therefore, the labor certification, is in the “national interest.” For each requirement, we have included forms of evidence that one may submit to meet the requirement and other tips to help you prepare your petition.

As there is no statutory or regulatory definition of the term “national interest”, USCIS relies on a 1998 Administrative Appeals Office precedent decision setting forth a three-prong test for evaluating requests for a national interest waiver. See Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998) (“NYSDOT”). These three prongs are outlined below

 

Requirement 1 – You must show that you plan on working in the United States in an area of substantial intrinsic merit.

Under the first prong of the NYSDOT test, it is important for you to focus on the proposed employment. USCIS will look at your documents to determine whether the importance of your proposed work is readily apparent.  Some of the evidence you may submit to demonstrate that you plan on working in the United States in an area of substantial intrinsic merit includes:

  • A letter from you and/or your company describing the work and its importance
  • Articles or other published media discussing your and/or your company’s work and its importance
  • Letters from experts in the field attesting to your work and its importance
  • Testimonial letters should include information about the expert’s own credentials, such as a C.V.

Requirement 2: You must show that the proposed impact of your work is national in scope.

While your employment may be limited to a particular geographic area, you must establish a benefit to more than a particular region of the country. Under the second prong of the NYSDOT test, you must demonstrate that the proposed benefit to be provided will be national in scope. USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field. Some of the evidence you may submit to demonstrate that the proposed impact of your work is national in scope includes:

  • Published articles or media reports
  • Copies of contracts, agreements, or licenses showing the scope and impact
  • Letters from current and former employers discussing your work and its national importance
  • Letters from experts in the field attesting to your work and its national importance
  • Testimonial letters should include information about the expert’s own credentials, such as a C.V.

Requirement 3: You must show waiving the labor certification requirement would benefit the national interests of the United States.

 The purpose of the labor certification process is to protect the national interests of the United States by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. Thus, when deciding whether to grant a waiver of the labor certification requirement, USCIS looks at all of the evidence to see whether the national benefits you offer are so great that they outweigh the national interests inherent in the labor certification process. This means that your evidence must show that you serve the national interest to a substantially greater extent than the majority of your colleagues and that you have a degree of influence on your field that distinguishes you from your colleagues. The national interest evaluation is prospective. This means you must show that you have a past record of specific prior achievements that indicate future benefits to the national interests of the United States.

Demonstrating that your business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify you for an NIW.  However, you still have to show that the creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Some of the evidence you may submit to demonstrate that waiving the labor certification requirement would benefit the national interests of the United States includes:

  • Copies of published articles that cite or otherwise recognize your achievements
  • Copies of grants or other funding you received listing the amount and terms of the grants, as well as the principal and co-investigators
  • Documents showing how your work is being implemented by others, for example:
  • Contracts with companies using your or your company’s products
  • Documents showing licensed technology that you and/or your company invented or co-invented, and how that licensed technology is being used by others
  • Patents or licenses awarded to you and/or your company with documents showing how they are being used and why they are significant to your field