National Interest Waiver

NIW is available only to employment based second preference immigration petitions (Eb-2). This category requires that the alien beneficiary possess either an advanced degree (Masters Degree or above) OR exceptional ability. Therefore, you are statutorily eligible for NIW petition if you have at least a Master degree or you can establish exceptional ability with convincing evidence.

Compared to regular Eb-2 petitions, NIW has two major advantages: first, a permanent job offer is not required; and second, a labor certification is not required. Accordingly, a qualified alien can file NIW petition on his/her own, and does not have to go through the dubious Labor Certification process.

It depends. An advanced degree or exceptional ability is only the statutory requirements for NIW eb-2 petition. In addition to meeting the statutory requirements, you also need to prove that granting you permanent residence without requiring a labor certification is in the U.S. national interest.

The legal standards for NIW adjudication were set by an AAU (The Administrative Appeals Unit) case law In re New York State Dept. of Transportation EAC 96 063 51031, (AAU, Aug. 7, 1998). This case set a three prong test: first, whether petitioner seeks employment in an area of substantial intrinsic merit; second, whether the proposed benefit of petitioner’s work is national in scope; and third, whether the national interest would be adversely affected if a labor certification were required. USCIS rarely denies an NIW case for failing to satisfy the first or second prong, but often raises questions based on the third prong.

No, this is not true. Although a majority of NIW petitioners are researchers in various fields of science, the law does not exclude individuals working in any specific field or profession. In practice, USCIS has granted national interest waiver to engineers, actors, musicians, painters, movie directors, writers, educators, entrepreneurs, chefs, and etc.

Now you know at least something about NIW from our website. If you are somehow wondering whether your credentials qualify you to file an NIW petition, or how good is your chance to get approved, email your resume or curriculum vitae to info@usemin.com. Attorney U.J. Suk will review your credentials and get back to you with our evaluation within two work days after we receive your inquiry. The evaluation is free and you are under no obligation to retain us after the evaluation.

The information provided in our evaluation may be different case by case because we do not use a broad brush template to answer every request. Each individual case is unique. But basically my evaluation letters includes the following information: (1) whether your credentials meet the minimum NIW requirements; (2) whether your case has a reasonable chance to be approved; (3) if, in my honest judgment, you are not qualified for NIW, what other options you have to obtain to green card.

In immigration petitions, just as in any areas of law, attorney’s experience and professional expertise can make a difference. NIW petition is a complicated legal process, our attorneys’ work include, but is not limited to, (1) counseling client at every point of the process; (2) assisting client collecting useful information and supporting documents; (3) drafting, reviewing and editing recommendation letters, (4) organizing the documents provided by client; (5) preparing the immigration forms; (6) drafting the petition letter; (7) preparing and filing the petition package; (8) tracing the progress of USCIS adjudication; (9) answering RFE (request for evidence) if one was issued; (10) advising client of compliance with the immigration issues and options while his/her NIW case is pending; and (11) contacting USCIS if necessary.

While you are waiting for approval of your case, receipt of RFE will certainly make you disappointed. But never ever panic! While adjudicators raise legitimate questions in many RFE’s, a great number of RFE’s are frivolous, especially those “Broad Brush” RFE’s criticized by Mr. William R.Yates, the Associate Director of USCIS Operations. For some reasons, however, USCIS continues to issue unjustified RFE’s on cases that is approvable based on initial evidence. The good news is that our record shows a majority of these cases are approved after the RFE was appropriately answered.

NIW cases can be denied for a number of reasons, legitimate or illegitimate. If a case is erroneously denied, a motion to reopen or reconsider (MTR) may be filed to fix the problem. If a case was denied based on a legitimate reason, e.g. lack of evidence to support the NIW claim, re-filing of the same case will unlikely give you the favorable result you are expecting unless you have new evidence to support the case. Although a previous denial alone may not have a negative impact on a re-filed case, we do not encourage you to re-file unless the case has a reasonable chance of success based on the new evidence you have collected.