The National Interest Waiver is similar to the EB1-1 in that it does not require employer sponsorship or a Labor Certification. Many of the same letters and evidence as described above may be used to show that an applicant meets the standard for a NIW. The criteria for this category may be considered more restrictive, yet less specific. Following the December 2016 USCIS Administrative Appeals Office decision in Matter of Dhanasar, USCIS has adopted a new analytical framework for adjudicating NIW petitions. The new criteria are:
- The work of the applicant must have “substantial merit” and “national importance;”
- The applicant must be well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of the Labor Certification process (PERM)
“Substantial merit” includes any work that contributes to the improvement of some important factor of life in the U.S. This commonly includes the fields of medical research, homeland security, and renewable energy, but can also include endeavors that improve education or cultural understanding. Significantly, whereas prior to the Dhanasar decision NIW applicants needed to demonstrate that their work had a nation-wide impact, the new framework is less restrictive. The decision outlines that a local impact can have national importance. This is especially significant for entrepreneurs who may not have had a strong NIW case under the old framework.
The second criterion, that the foreign national is well positioned to advance the proposed endeavor, means that USCIS will consider the applicant’s skills and experience. Demonstration that the applicant holds a position with a renowned institution is also helpful.
The third criterion is that the applicant must demonstrate that it would be in the U.S.’s best interest to waive the Labor Certification process. Satisfying this criterion involves showing the USCIS that the applicant is so exceptionally accomplished that to compare him or her to U.S. workers with similar qualifications on paper would not be logical.
Over the years, our firm has reviewed court cases on the NIW standard, and written summary articles:
- Attorney Megan Kludt and Kelsey Camire co-authored Recent Trends in National Interest Waiver Cases
- Attorney Dan Berger co-authored The New NIW Standard Established by Matter of Dhanasar
Our firm has recently presented on the new NIW standard for the American Immigration Lawyers Association (AILA): https://agora.aila.org/product/detail/3378?sel=description
The new NIW standard is particularly helpful for entrepreneurs. See this news update from the US Alliance for International Entrepreneurs: http://usaie.org/usaie-applauds-new-immigration-decision-to-help-entrepreneurs-get-green-cards/