Is the National Interest Waiver right for you?
Kyle Huffman • March 6, 2021
How to tell if you are eligible to apply for a National Interest Waiver (NIW)
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The National Interest Waiver (NIW) is an employment-based immigrant visa category that can lead to a green card. One of the key advantages of the NIW is that it allows self-petitioning, so there is no need to find an employer in the United States to sponsor a petition. In fact, “National Interest Waiver” derives from the act of the United States “waiving” the job offer and United States Department of Labor certification requirements. However, the NIW falls under the EB-2 green card category, meaning it is restricted to those individuals who have advanced degrees, or those who, in the absence of an advanced degree, can show that they have exceptional ability in their field of expertise. However, notably, the NIW has become much more accessible since the 2016 court case, Matter of Dhanasar.
Interested in whether you qualify for a NIW?
Here is how to tell if the NIW is the right visa category for you:
Are you an “Advanced Degree Professional”?
The basic definition for an advanced degree professional in the EB-2 category is someone who holds a degree beyond that of a baccalaureate level. Master’s degrees, Ph.D.’s, M.D.’s and J.D.’s are all common examples of advanced degrees that will qualify a person as an advanced degree professional.
Don’t hold such a degree? Don’t worry!
Even if you haven’t completed one of these degree programs, it is still possible to qualify as an advanced degree professional
if you meet certain conditions. A Bachelor of Science or Bachelor of Arts degree can also serve to help qualify you as an advanced degree professional.
United States Citizenship and Immigration Services has provided an alternative definition of advanced degree professional
as someone with a baccalaureate or foreign equivalent degree plus five years of post-baccalaureate, progressive work experience in the field. This means as long as you have completed a BS or BA program, and you have worked in your field full-time for five years since earning your degree, you can still be considered an advanced degree professional!
What if you have not completed a 4-year university degree program?
You may still be eligible for a NIW even without earning a university degree. In the absence of a university degree, another way to be eligible for a NIW is by proving you are exceptionally talented in your profession. There are several ways to show that you have exceptional ability, including letters of recommendation from recognized experts in your field, letters from your past employers (that prove you have been working in your field full time for at least 10 years), memberships in professional associations, evidence that you earn a high salary compared to others in your same occupation, licenses or certificates for practicing in your occupation, among others.
If you have any questions about whether you might be eligible to apply for a NIW, please schedule a consultation with one of our experienced attorneys.
We look forward to working with you.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
During the recent administration there has been an increase in issuance of Requests for Evidence for EB-1A petitions for those of Extraordinary Ability. A Request for Evidence is a request that is made by USCIS that should explain how the evidence is deficient in proving the criteria argued and what additional evidence needs to be provided by the applicant to meet the criteria. EB-1A petitions are already normally subject to higher scrutiny because their approval is the first step needed to apply for Lawful Permanent Residence or a green card. USCIS normally requires not just evidence but that the evidence be provided with context and information to show why it matters in a particular field. For example, if you were providing evidence of your membership in an organization that requires outstanding achievements of its members, just providing evidence of the membership is not enough. You must explain what that membership is and provide background information on the organization granting the membership. You also need to provide evidence on the criteria that is used to select the members, information on those who select the members to show that they are recognized experts, other documentation such as articles about the membership organization to show its importance, and any other relevant evidence and background information to show that the criteria is met. A request for evidence being issued prior to the current administration was not uncommon, but in the current climate it is more surprising to not receive a request for evidence for this type of case. It is important to remember that a request for evidence is not a denial. Depending on the validity of the information in the request and the substance some Requests for Evidence can be overcome, and the case be approved. It is important to carefully review the request and note if there are any errors in the content and application of the regulations by USCIS. If you have an attorney, you should work with them and make sure that you provide any evidence you think may be helpful. Although there is a deadline by which a response must be submitted, attention to detail and patience will go a long way when dealing with having to respond to a request for evidence. If you believe you may qualify for this type of visa, please feel free to contact our office.
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