1. The Three-prong Test for Alien Applicants of National Interest Waiver

The Immigration Act requires that all aliens seeking to qualify as having exceptional ability to show that their presence in the United States would substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States, and adds the additional test of "national interest" to those who wish the job offer waiver. Neither Congress nor USCIS defined the term "national interest" in either the Immigration Act or the regulations, in order to leave the application of this test as flexible as possible. 

However, an alien seeking to meet the national interest standard must show significantly more than "prospective national benefit" required of all aliens seeking to qualify as having exceptional ability. The burden rests with the petitioner to establish that the exemption from, or waiver of, the job offer requirement will be in the national interest of United States. Each case is to be judged on its own merit.

In addition, there are a number of rules that the USCIS regularly employs in the adjudication of the NIW petitions. USCIS issued a precedent decision which created a three-prong test for alien applicants seeking a national interest waiver. In order to qualify for an NIW, an alien applicant must demonstrate the following:

1) He or she seeks work in an area of substantial intrinsic merit: The alien must play a significant role in an area of substantial intrinsic merit, and must not be simply a minor constituent who took part thereof.

2) The candidate's proposed work will benefit the nation as a whole: The alien proposed benefit should be national in scope. The alien must be involved in an undertaking activity that will substantially benefit the United States.

3) The significant benefit derived from the alien's participation in the national interest field should considerably outweigh the national interest in using the Labor Certification process: The National interest would be adversely affected if a Labor Certification were required for the alien. Under a NIW, an alien who seeks an exemption from the job offer requirement must be able to demonstrate that the benefit his or her activity would provide to the nation is so great as to outweigh the nation's interest inherent in completion of the Labor Certification process. 

The National Interest Waiver may not be based solely on the alien’s ability to alleviate a local labor shortage. The USCIS 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.

Also, the alien must establish that the alien has a past record of specific prior achievement which justifies projections of future benefit to the national interest. The alien must have past experience in the area in which he/she will benefit the United States. The USCIS looks at this very closely to determine if the alien has a serious commitment to the activity which promotes the national interest.

2. Additional Requirements of NIW Petition for USCIS Adjudication

• 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 should 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.

• 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.

• Submit evidence related to your ability to perform the duties of the proposed employment position. To be considered in the national interest, you should be significantly above that necessary to prove the "prospective national benefit" required of all aliens seeking to qualify as "exceptional." Exceptional is defined under the USCIS regulations as "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business."

• You should 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.

• You should 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.

• 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.

• You should establish that you have a past record of specific prior achievement which justifies projections of future benefit to the national interest. You should establish, in some capacity, your ability to serve the national interest to a substantially greater extent than a majority of your colleagues. You should 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 USCIS is adjudicating the NIW petitions.

3.  The Evidence Collection and Strong Recommendation Letters

To establish that you are an exceptional alien whose permanent residence will be in the national interest of the United States, you should collect all the evidence to demonstrate that you are in a position that is in the U.S. national interest, and you contribute to U.S. to a much greater degree than an average U.S. citizen counterpart. To explain that your work is in the national interest of the United States, you need to collect and use all the related evidence such as government documents, public media, and internet website that will help you to establish how your work is related to or contribute to the U.S. national interest.

You should also provide recommendation letters or reference letters from experts within your field of specialization such as professors, researchers, and experts in government agencies. These recommendation letters should demonstrate that: 

• You seek employment in an area of substantial intrinsic merit;

• You possess unique knowledge, abilities, or experience which sets you apart from your professional peers; 

• You will utilize your unique talents in an activity significantly benefiting the field of specialization; 

• The proposed benefit will be national in scope; and 

• National interest would be adversely affected if a Labor Certification were required. 

Strong testimonials from experts in your field are key to a successful National Interest Waiver petition. Therefore, you need a strong reference, not just an average one. At least three recommendation letters from the experts in your field are needed. Recommendation letters from experts outside your current employer carry more weight.

 

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