Obtaining U.S. Permanent Resident Status through a National Interest Waiver (NIW)

What is an NIW?

It is possible to receive permanent residence status (a “green card”) through employment. To do so usually involves a lengthy “labor certification” process where the sponsoring employer first demonstrates that there is not a minimally qualified U.S. worker to fill the position. Thankfully, U.S. immigration law allows certain individuals whose employment is in the “national interest” to receive permanent residence without first having a job offer and going through the onerous PERM labor certification process. This waiver of the job offer and need to complete the labor certification is known as the “national interest waiver” or NIW. If approved, the NIW petition will fall under the EB-2 classification as a member of the professions holding an advanced degree or as an individual of exceptional ability.

Who can qualify for an NIW?

Before you begin the NIW process, you need to understand what this immigration option is and who qualifies. Not everyone will qualify for an NIW. To qualify, you must demonstrate both:

1. You are either a member of the professions holding an advanced degree or an individual of exceptional ability; AND
2. The waiver of the job offer requirement and the labor certification requirement is in the “national interest.”

A. Advanced Degree Professionals

A professional with an advanced degree is an individual who is:

• A member of the professions holding an advanced degree or foreign equivalent degree; and
• Coming to the United States to work in a position that requires, at a minimum, possession of an advanced degree or the equivalent.

An “advanced degree” is any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate (i.e., Master’s or Ph.D.). In addition, a U.S. baccalaureate degree or a foreign equivalent degree followed by at least 5 years of progressive experience in the specialty is also considered an “advanced degree” as the equivalent of a master’s degree.

Mere possession of an advanced degree, however, is not sufficient. The position where you will work in the United States must also require an advanced degree. If the position does not require an advanced degree, it will not qualify for an NIW. For example, many registered nurses possess advanced degrees, but most nursing positions in the United States do not require advanced degrees, so nurses working in a position not requiring an advanced degree would not qualify for an NIW even if they possess an advanced degree.

B. Individuals of “Exceptional Ability”

You can qualify for an NIW, even if you are not an advanced degree professional, if you possess “Exceptional Ability.” You possess “Exceptional Ability” if you have “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business;” you will “substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future;” and your services will be performed in a field sought by an employer in the United States (i.e., you will be working in the United States in the same field in which your exceptional ability lies).

To show you are an alien of exceptional ability in the sciences, arts, or business, the NIW petition must include evidence of at least three of the following (evidence may be relevant to multiple criteria):

1. An official academic record showing you have 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. Letter(s) from current or former employer(s) showing you have at least ten years of full-time experience in the occupation where you will work in the United States;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence you have commanded a salary, or other renumeration for services, which demonstrates exceptional ability;
5. Evidence of membership in professional associations; or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Merely submitting three (or more) types of initial evidence does not, however, automatically qualify you as possessing “Exceptional Ability.” USCIS will also conduct a “Final Merits Determination” to evaluate the evidence as a whole, assessing whether you have a degree of expertise “significantly above that ordinarily encountered” in your field. An individual whose qualifications that are no better than the minimum possessed by most members of a given field generally will not be deemed to have “Exceptional Ability.”

C. A Waiver of a Job Offer is in the National Interest

In addition to proving you are either an advanced degree professional or an individual of exceptional ability, a waiver of the job offer requirement and the labor certification requirement must be shown to be in the “national interest.”

USCIS may grant a national interest waiver if you satisfy the following three prongs:

1. Your proposed endeavor has both substantial merit and national importance;
2. You are well positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

First Prong: The Proposed Endeavor has both Substantial Merit and National Importance

The NIW petition must explain to USCIS both (a) what you will be doing in the United States (the “endeavor”) and (b) why that activity is important and valuable to the United States (has “substantial merit” and “national importance”).

The activities you will perform in the United States is known as the “proposed endeavor.” The NIW petition must include not only details as to the general nature of occupation you will be working in, but also the specific activities you plan to undertake within that occupation. For example, while engineering is an occupation, it is not enough to simply state you will be working as an engineer and listing the generic duties and responsibilities of an engineer. Instead, the NIW petition must include an explanation describing the specific engineering projects and goals, or the specific areas of engineering in which the individual will work.

Your proposed endeavor also must have both “substantial merit” and “national importance.” Merit may be demonstrated in areas such as business, entrepreneurship, science, technology, culture, health, or education. USCIS will consider evidence of potential economic impact, but merit can be established without immediate or quantifiable economic impact. Moreover, endeavors related to research, pure science, and the furtherance of human knowledge may have substantial merit whether or not they are likely to translate into economic benefits for the United States.

National importance will be found if your proposed endeavor has “significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study”. In determining “national importance,” USCIS focuses on your personal activities and nature of the proposed endeavor and not just the geographic breadth of the endeavor. For example, an endeavor may have national importance because it has national or even global implications within a particular field, such as certain improved manufacturing processes or medical advances, or if it has significant potential to employ U.S. workers or other substantial positive economic effects, particularly in an economically depressed area.

Second Prong: You are Well Positioned to Advance the Proposed Endeavor

This prong centers on your personal qualifications. Specifically, you must demonstrate you personally are well positioned to advance the endeavor. In making this determination, USCIS considers factors such as your education, skills, knowledge, and record of success in related or similar efforts; a model or plan you developed (or played a significant role in developing) for future activities related to the proposed endeavor; any progress you made towards achieving the proposed endeavor; and interest or support garnered from potential customers, users, investors, or other relevant entities or persons. Evidence documenting your past achievements and corroborating projections related to the proposed endeavor are valuable to show you are well positioned to advance the endeavor.

Third Prong: On balance, it would be beneficial to the United States to waive the job offer and permanent labor certification requirements

This last prong requires you to demonstrate that the factors in favor of granting the NIW outweigh those that support the requirement of a job offer and a labor certification. USCIS assesses whether your endeavor and personal qualifications (i.e., being well-positioned to advance that endeavor), taken together, will provide sufficient benefit to the United States that a waiver of the labor certification requirement outweighs the benefits that ordinarily flow from that requirement.

For example, in the case of an entrepreneur, where the individual is self-employed in a manner that generally does not adversely affect U.S. workers, and where the individual establishes or owns a business that provides jobs for U.S. workers, USCIS can find the NIW is warranted because there is little benefit from the labor certification process.

NIW Supporting Documents and Evidence

Supporting documents are essential to a successful NIW petition. It is not enough to merely claim that you qualify for an NIW, you must submit evidence to prove it. Any documents not in English must be translated into English. Required documents include:

• An official academic record showing you have a United States advanced degree or the equivalent.
• Degrees, certificates, or licenses in your field;
• Patents, trademarks, or copyrights you developed;
• Published articles or media reports about your achievements or current work;
  
  Letters of recommendation that act as evaluations or references of your abilities and achievements from experts in your field. Ideally, you should provide at least 3 or 4 recommendation letters that provide extensive details regarding your abilities and achievements. Aside from having letters of recommendation, it can also help to have a specific recommendation letter from an industry expert explaining why your immigration is in the national interest of the U.S.
• A plan describing how you intend to continue your work in the United States (or a detailed business plan or other description, along with any relevant supporting evidence, when appropriate);
• Correspondence from prospective or potential employers, clients, or customers;
• Copies of contracts, agreements, or licenses showing the potential impact of the endeavor;
• Documentation reflecting feasible plans for financial support of the endeavor;
• Evidence you have received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the endeavor;
• Evidence you have received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation;
• Evidence your work is being used by others or has influenced their field of endeavor, such as citation history of the individual’s work or excerpts of published articles showing positive discourse around, or adoption of, the work;
• Evidence showing the impracticality of a PERM labor certification application (e.g., the NIW should be granted because the labor certification process would prevent an employer from hiring a person with your unique knowledge or skills); the benefit to the United States from your contributions, even if U.S. workers are also available (e.g., your personal qualifications will ensure the endeavor can generate considerable revenue or jobs consistent with economic revitalization); and the national interest in your contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields or public health or safety.

Aside from the EB-2 NIW requirements for establishing your eligibility, you also need to provide more standard pieces of documentation. This includes copies of your passport, birth certificate, national ID card, and anything else that will help to establish your identity and eligibility.

Completing the Process of Obtaining U.S. Permanent Resident Status

Approval of the NIW petition makes you eligible for U.S. permanent residence status, but does not in and of itself convey that status. Additional steps are required for you to actually acquire permanent residence status.

If you are in the United States, you may be eligible to obtain U.S. permanent resident status through the “adjustment of status” process. An individual eligible for adjustment of status files an application with USCIS by mail, requesting a grant of permanent residence status without needing to leave the country. Your spouse and any accompanying unmarried children under age 21 may also be eligible to apply for adjustment of status at the same time as you, provided they are also in the United States at the time of filing. In some cases the adjustment of status application may be filed with USCIS at the same time as the NIW petition, but usually there will be a gap of multiple years between filing the NIW and eligibility to file for adjustment of status.

Instead of applying for adjustment of status, you may complete the final step of the U.S. permanent resident status process by applying for an immigrant visa at a U.S. Consulate in the country of your last residence or nationality. Individuals who are currently working in the United States generally opt to apply for adjustment of status with USCIS instead of applying for an immigrant visa at a U.S. Consulate outside the United States. However, individuals who are outside the United States, or who have violated their immigration status while in the U.S., may not be eligible to file for adjustment of status and may have to complete the process at a U.S. Consulate in their home country or country of last residence abroad.

Contact a Charlotte Immigration Attorney Today

If you are ready to begin the process of applying for an EB-2 NIW, you will need the help of a Charlotte immigration attorney. Contact the Charlotte immigration attorneys at The Fogle Law Firm LLC through our website or by calling us directly at 404-522-1852. We look forward to assisting you with your case!