1. Professional Person Holding an Advanced Degree 

To qualify for NIW petition, an alien applicant should have an advanced degree and exceptional ability in sciences, arts or business. The "advanced degree" is defined as postgraduate degree beyond a bachelor's degree, at a minimum, a Master's Degree or its equivalent.  

The "equivalent" of a U.S. Master's Degree is the Bachelor's Degree followed by at least 5 years of progressive experience in the specialty.  Experience may NOT be substituted for the Bachelor's Degree in establishing eligibility of NIW petition. In addition, if applicant's specialty customarily requires a Doctoral Degree, the applicant should possess such a degree. An alien can satisfy the advanced degree requirement by holding any of the following:

1) a U.S. Master’s Degree or higher, or a foreign degree evaluated to be the equivalent of a U.S. Master’s Degree or higher; or

2) a U.S. Bachelor’s Degree, or a foreign degree evaluated to be the equivalent of a U.S. Bachelor’s Degree, plus five years of progressive, post-degree work experience. An alien who does not possess at least a Bachelor’s Degree or a foreign equivalent degree will be ineligible for this classification.

For NIW application, USCIS will not accept an education evaluation to determine an equivalency to a Bachelor’s Degree. USCIS 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.

2. Exceptional Ability In Sciences, Arts Or Business

An alien applicant may qualify for "Aliens of Exceptional Ability" if:

1) the alien applicant has exceptional ability in the sciences, arts, or business,

2) the alien applicant will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and

3) if the alien's services in one of those fields are sought by an employer in the United States. 

The law defines "exceptional ability" as "a degree of expertise significantly above that ordinarily encountered."  The USCIS has enumerated six factors that denote exceptional ability. If an applicant meets three of these, he or she will qualify for the classification of “Alien of Exceptional Ability”.  The individual must be able to provide to the USCIS at least three of the following items:

• 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;

• Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

• A license to practice the profession or certification for a particular profession or occupation;

• Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

• Evidence of membership in professional associations; or

• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

The alien applicant provided evidence must be indicative of or consistent with a degree of expertise significantly above that ordinarily encountered. Therefore, evidence submitted to establish exceptional ability must somehow place the alien above others in the field in order to fulfill the criteria; qualifications possessed by every member of a given field cannot demonstrate a degree of expertise "significantly above that ordinarily encountered." 

The USCIS regulation provides that mere possession of a degree, diploma, certificate or similar award from a college, university school or other institution of learning shall not by itself be considered sufficient evidence of exceptional ability. To meet the criterion set forth in the regulation, formal recognition in the form of certificates may have more weight than letters prepared for the petition "recognizing" the alien's achievements.

3. An Self-Evaluation for National Interest Waiver Petition 

First, you need to answer there two questions:

• Is your field within the areas of sciences, arts, or business?
• Can you present evidence of at least 3 of the following?

1. An advanced degree (Master or above) related to the area of exceptional ability;
2. Evidence in the form of reference letters form employers or experts that you have at least two years experience in the   area in which your work will benefit the United States;
3. A license to practice in your field;
4. Evidence that you have commanded a salary higher than others in your field;
5. Membership in professional associations;
6. Recognition for significant contributions to your field.

The USCIS also suggested that the following seven factors could be taken into consideration for NIW petition:

1. Improving the U.S. economy;
2. Improving wages and working conditions of U.S. workers;
3. Improving education and training programs for U.S. children and under-qualified workers;
4. Improving health care;
5. Providing more affordable housing for young and/or older, poorer U.S. residents;
6. Improving the environment of the U.S. and making more productive use of natural resources;
7. A request from an interested U.S. government agency or improving international cultural understanding

The above list is not exhaustive. The changes in the law have made it not easy for persons to qualify for the National Interest Waiver. As such, it is difficult to define exactly what qualifies a person for the National Interest Waiver or not. There are a few main questions that you should ask yourself when completing this evaluation:

1. Do I possess unique knowledge, abilities or experience that set me apart from my peers?
2. Will I, through the use of this knowledge, significantly benefit my field?
3. Does my field have substantial intrinsic merit?
4. Will the benefit I bring to the U.S. be a national benefit?
5. Will the national interest of the U.S. be adversely affected by requiring me to go through Labor Certification?

If you have answered Yes to most of these questions, you may qualify for the National Interest Waiver. We know that this can be confusing, and that it is difficult to grasp the many possibilities that are facing you. Just remember, when it comes to decide if you qualify for an EB1-EA, EB1-OR, or NIW, a honest and reasonable analysis is very helpful for your petition.

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