The National Interest Waiver ("NIW")

The National Interest Waiver ("NIW") is a waiver of the job offer requirement for individuals who wish to immigrate to the U.S.. Normally, a professional who wishes to work in the U.S. must undergo the time-consuming Labor Certification process. But an alien may be eligible for an NIW if he or she can prove that, he or she is:

• An Alien of Exceptional Ability or an Advanced Degree Professional; and
• Involved in an activity which could prospectively benefit the National Interest.

The NIW provides several major advantages over the normal permanent residency application process.

Click here to see checklist for National Interest Waiver Application

Aliens of Exceptional Ability
An "Alien of Exceptional Ability" is a professional who has a degree of expertise above that ordinarily encountered in his or her field. The individual must be able to provide to the INS at least three (and only three) of the following items:

1. An official academic record showing that the alien has 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. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the alien has commanded a salary, or other remuneration 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.

Advanced Degree Professionals
An Advanced Degree Professional is an individual who has obtained a Master’s Degree or higher. In order to qualify under this category, the individual must meet the following requirements:

1. The alien must have a Bachelor’s Degree. The INS will not accept an education evaluation to determine an equivalency to a Bachelor’s Degree.
2. The alien must have a Master’s Degree or its equivalent. The INS has determined that five years of progressive experience in the alien’s specialty after obtaining the Bachelor’s Degree will be considered an equivalent to a Master’s Degree.

The National Interest
Although there have been a few general administrative rulings on the issue, the INS provides no specific criteria for determining what comprises the "National Interest", other than stating that the alien’s activity must have a "prospective national benefit." Nonetheless, the INS regulations and the Administrative Appeals Office’s ("AAO") rulings provide some guidance concerning what conditions will satisfy such "prospective national benefit."

According to one influential AAO ruling, the alien’s is eligible for a National Interest Waiver if he or she meets one or more of the following criteria:

1. The alien’s admission will improve the U.S. economy;
2. The alien’s admission will improve wages and working conditions of U.S. workers;
3. The alien’s admission will improve educational and training programs for U.S. children and underqualified workers;
4. The alien’s admission will improve health care;
5. The alien’s admission will provide more affordable housing for young, aged, or poor U.S. residents;
6. The alien’s admission will improve the U.S. environment and lead to more productive use of the national resources; or
7. The alien’s admission is requested by an interested U.S. government agency.

The alien needs to only meet one of these requirements to qualify.

INS Rules for Adjudication
In addition, there are a number of rules that the INS regularly employs, in addition to the above, that are considered in the adjudication of the NIW petition.

1. The alien must have at least two years experience in the area in which he/she will benefit the United States. The INS looks at this very closely to determine if the alien has a serious commitment to the activity which promotes the national interest.
2. The National Interest Waiver may not be based solely on the alien’s ability to alleviate a local labor shortage. The INS has determined that granting the National Interest Waiver for this reason would be unnecessary since the Labor Certification is employed to determine if a labor shortage exists and then allow a vacant position to be filled. Therefore, a petition that is based solely on the fact that the alien will ameliorate a labor shortage will be denied.
3. The alien must be involved in an undertaking that will substantially benefit the United States.
4. The alien must play a significant role in the undertaking, and must not be simply a minor constituent who took part thereof.

Additional Requirements in INS Adjudications

1. Provide evidence that the benefits of your proposed employment will be nation in scope. Your employment may be limited to a particular geographic area. However, you must establish benefit to more than one particular region of the country. Moreover, there should be little or no adverse impact on the interests of other regions of the country.
2. Submit evidence that you seek employment in an area of substantial intrinsic merit. Your employment must be important to the national interests of the U.S. Additionally, the benefits of your employment should be immediately apparent to the national interests of the U.S.
3. Submit evidence related to your ability to perform the duties of the proposed employment position. To be considered in the national interest, you must make a showing significantly above that necessary to prove the "prospective national benefit" required of all aliens seeking to qualify as "exceptional." Exceptional is defined under Service regulations as "[A] degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business."
4. You must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required. You must demonstrate that it would be contrary to the national interest to potentially deprive a prospective employer of your services by making available to U.S. workers the position you seek. If self-employed, you must also establish that the national interest would be adversely affected if a labor certification were required.
5. You must establish that you are not seeking a national interest waiver based on a shortage of qualified workers in a given field, regardless of the nature of the occupation. The NIW is not warranted solely for the purpose of ameliorating a local labor shortage.
6. If you demonstrate that you hold a patent or are responsible for an innovation, then you must demonstrate that the specific innovation serves the national interest.
7. You must establish that you have a past record of specific prior achievement which justifies projections of future benefit to the national interest. You must establish, in some capacity, your ability to serve the national interest to a substantially greater extent than a majority of your colleagues. You must demonstrate to some degree, your influence on your field of employment as a whole.

These standards are not codified, but represent the current standards by which the INS is adjudicating these petitions.

Sample Approved NIW Applications
The following is a list of job titles that have been approved for National Interest Waivers. As with all NIW cases, these petitions were supported by strong evidence and persuasively argued. As you can see, almost any position that involves critical technology or benefits the economy is a candidate for approval. Also, the INS has been willing to consider the cultural contributions of various artistic occupations.

Business Occupations:
Agricultural Economist
Budget Analyst
Businessman
Corporate Vice President
Finance Director
Finance Manager
Market Research Analyst
Manager, Real Estate Investment Firm
Mall General Manager (underdeveloped area)
Musical Composer
Trade expert
Trade Consultant
Senior Financial Analyst - Overseas Projects

Computer Occupations:
Electrical Engineer
Information Management Systems
Lead Information Analyst
Programmer/Analyst
Robotics Software Engineer
Software Engineer
Semiconductor Design Engineer

Non-Computer Engineering Occupations:
Aerodynamics Engineer
Assistant Professor of Engineering (Satellite Communications)
Biomedical Engineer
Civil Engineer
Environmental Engineer
Environmental Engineer
Environmental Geologist/Geochemist
Engineer: Material Science
Engineer: Transportation
Field Engineer
Geotechnical Engineer/Computer Applications
Geotechnical Engineer
Golf Course Designer: (civil engineer)
Mechanical Engineer
Research Engineer: (glass fiber-epoxy composite laminates)
Transportation Engineer
Semi-Conductor Laser Engineer

Medical Occupations:
Acupuncturist
Doctor, shortage area
Clinical Researcher (AIDS related pulmonary diseases)
Medical Director
Medical Physicist
Researcher: Medical Informatics
Medical Laboratory Partner
Physician/Researcher
Psychiatrist
Primary Care Physician
Psychologist
Physician (emergency medical services)
Psychometrician
Physician (low income area)
Physician (rural area)
Psychologist

Artistic Occupations:
Artist
Artist (Filipino painter and art instructor.)
Artist (sculptor, drum maker, dancer and musician)
Artist (an artist whose work with art and computers offers new ways of creating and disseminating art.)
Artist (Indian classical musician with more than 10 years' full- time experience as a tabla (drum) player and teacher).
Acrobatic Musician
Children's writer: health issues
Dance Instructor-Performer (ballroom dancing)
Dance/movement therapist
Folkloric Dance Troupe Founder (founder, director, and choreographer of a non-profit Mexican Folkloric dance troupe)
Graphic Artist
Musician: Clarinetist
Self-Employed Artist (renowned painter)
Songwriter, performer, and producer of children's music.
Writer

Research Occupations:
Biomedical Researcher
Chemist: Global Product Development
Researcher: Education (model to predict the academic performance of students in math and science)
Researcher: Physicist
Researcher: Biochemist
Researcher: Agricultural pest control
Research Scientist
Food Chemist
Ceramics-Matrix Researcher
Materials Research Assistant
Medical Research Technologist (Sterilization)
Optical Laser Spectroscopy Physicist
Research Scientist: Breast Cancer
Researcher: Applied Chemistry
Research Assistant (laser spectroscopy)
Researcher (pharmaceutical company)
Research Scientist: (sugarcane genetics)
Research Associate: (cancer)
Research Assistant: (immune systems)
Research Assistant: (infertility)
Research Scientist: (meteorite research in Antarctica)
Research Scientist: (corn hybridization)
Research Engineer (R&D of flight recorder)
Research Associate: (metallurgical engineering)
Research Scientist (chemotherapy for cancer)
Research Scientist: (biological sciences)
Research Scientist: (AIDS, Leukemia and arthritis).
Research Scientist: (cancer research)
Research Scientist: (AIDS Research)
Research Associate (Blood Brain Barrier)
Research Scientist: (petroleum conservation)
Research Associate (anti-tumor and anti-AIDS agents)
Research Associate: (cellular and genetic research)
Research Assistant: (research on the extracts of medicinal plants for their activity against the AIDS virus)

Miscellaneous Occupations:
Day Care Center Teacher/Director
Developer of Copper Oxidizing Process
Deer Farmer/Executive of Deer Farming
Firearms Instructor
Nutrition Counselor (WIC)
Publisher-Writer
Senior Education Advisor for UNICEF
Teacher/Secondary
Teacher
Tobacco-Control Expert
Volunteer Coordinator

Disclaimer
The information on this page does not constitute legal advice. Please contact the firm for an explanation concerning how you should use the information we have provided and for other important information.