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National Interest Waivers (NIW) – How to Win a NIW Case

Brandon Gillin, Immigration Lawyer at Genesis Law Firm

by Brandon Gillin, Immigration Lawyer at Genesis Law Firm

The National Interest Waiver (“NIW”) is a method to obtain lawful permanent resident (“LPR”) status in the United States.  The NIW falls within the EB-2 immigrant visa category.  Generally, an EB-2 immigrant visa requires a specific job offer and labor certification.  The NIW enables the applicant to forego the Labor Certification and the offer of employment by establishing that his or her admission to LPR status is in the “national interest.”

Those best suited for the NIW are outstanding researchers with peer reviewed publications, citations from other peer reviewed publications, and letters of recommendation from professors and professionals with knowledge of the applicant’s expertise in his or her field.

Having well-written letters of recommendation is a crucial part of a successful NIW application.  Letters of recommendation should come from professors or professionals who can attest to their knowledge of the applicant’s academic and/or professional successes.  Those who do not have a personal relationship to the applicant are preferred since they tend to show objectivity in the recommendation.  Recommenders may include, but are not limited to: researchers, scientists or engineers who have cited to the applicant’s work, who have commercialized the applicant’s research or who work for an agency that has implemented the applicant’s work, academic advisors, or professors.  The recommender should focus on the following:

  1. The applicant’s research contributions and their significance to the academic and/or professional community.  This should be written in a way that is understandable to the layman, but also accurately conveys the significance.
  2. The applicant’s research contributions’ significance to the national interest; i.e., what implications do the contributions have for the economy, national security, etc.
  3. Differentiate between the applicant’s contributions between that of a qualified U.S. worker in order to show that the U.S. worker has not accomplished what the applicant has.
  4. How the applicant’s work has been implemented in a practical way thus far.
    1. It is a good idea to get a letter of recommendation from someone who has successfully implemented the applicant’s work.
  5. The background of the recommender.  USCIS wants to know if this recommender is credible, so this should be stated explicitly in the recommendation.

Letters of recommendation should be addressed directly to the Director of USCIS and be filed in the appropriate USCIS center (based upon where the applicant resides).

Included in the services we provide is a comprehensive letter of recommendation overview in which we review the letters based upon our experience on successful petitions, advise on the specific content of the letters given the applicant’s field and accomplishments, and advise the recommender on what aspects of the applicant’s field to highlight based on the NYSDOT case.

Physicians are in a special situation; they are eligible to receive a NIW if they practice in a medically-underserved area for the Veterans Administration for five (5) years.

Physicians who commit to working for five (5) years in a medically-underserved area (as designated by the Secretary of Health and Human Services) or a Veterans Affairs facility may be granted a Physician NIW.  There are no longer any limitations on which type of physicians may be granted the NIW, and there are relatively new procedures for adjudicating physician NIWs since the 9th Circuit’s ruling in Schneider v. Chertoff, 450 F.3d 944 (9th Cir. 2006).  In that case, the Ninth Circuit overturned a Federal District Court judge’s decision to uphold the INS regulations on Physician NIWs that it promulgated in 2000.  On January 23, 2007, USCIS issued an interim memorandum issuing guidelines to USCIS adjudicators on how to properly adjudicate Physician NIW applications.  The interim memo may be found here.  The memo states that not only would USCIS recognize Physician NIWs from specialty physicals in addition to primary care physicians, but the time served on in nonimmigrant visa status would be counted toward the five years required for the NIW.  Thus, if a O-1 nonimmigrant visa holder worked in an underserved area for three years before applying for a J waiver, those three years would be counted toward the five years required for the NIW.  Before Schneider, those three years would not have counted.

All medically-underserved areas, physician shortage areas and physician scarcity areas are listed with the Health Resources and Services Administration.  Designation as such may change over time.  As long as the applicant began his or her employment when the area of employment had its HRSA designation, s/he may count that time toward the required five years as long as other NIW requirements are met.

Other requirements for employment in a scarcity area include an “attestation letter” from a state or federal department of health to be obtained at most 6 months before the NIW application is filed.  This letter is used to attest that the physician’s work will be in the public interest for that scarcity area.  An employment contract may also be required to show the five year commitment.  Employment at a Veterans Affairs facility requires a commitment letter.

Upon completion of the five years of service, an applicant may adjust his or her status using Form I-485 so long as his or her priority date is current.  Those whose country of chargeability is China or India often have longer wait times than those with other countries of chargeability.

In addition, the applicant must still meet the basic eligibility criteria for EB-2.  This eligibility criteria includes: (1) having an “advanced degree” or “exceptional ability” in the sciences, arts or business; (2) demonstrating that the applicant seeks employment in an area of substantial intrinsic merit to the U.S.; and (3) showing that the applicant’s proposed activity will be national in scope.  The basic NIW requirements come from the case of In re New York State Dept of Transportation, 22 I&N Dec. 215 (Comm. 1998), commonly referred to as the “NYSDOT” case.  Read more about that case and the standard it developed here.

After the NYSDOT case was handed down from the Administrative Appeals Office (“AAO”) in 1998, there are now three basic factors that must be considered in a NIW application:

  1. Area of Substantial Intrinsic Merit;
  2. Proposed Benefit of National Scope; and
  3. Proposed Benefit of National Interest.

Substantial Intrinsic Merit
This factor requires that the applicant show that his/her endeavor is related to an important national goal and that the work is beneficial to the United States.  National goals include but are not limited to improvements in the economy or the environment.  Substantial intrinsic merit is not limited to fields of scientific research, but can be demonstrated for almost any field, including but not limited to the arts, social sciences, and business.

National Scope
This factor requires that the applicant show that his/her endeavor is national in scope and not limited to one geographic area.  If the applicant can show that s/he has received government funding, has been cited in peer reviewed publications or journals, and has obtained good letters of recommendation, it becomes easy to satisfy this requirement.

National Interest
This factor is perhaps the most difficult of the three to satisfy, but is not insurmountable.  The AAO, in its decision, stated, “The petitioner . . . must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.”  This means that the national interest of the applicant’s endeavor must outweigh the national interest inherent in the labor certification process.  To satisfy this requirement, the applicant should submit, at a minimum: (a) evidence of significant prior achievement in the field; (b) evidence that the applicant is different and better than U.S. workers in his or her field; and (c) evidence of his or her objective influence in the field.

A successful NIW submission requires carefully considered evidence and supporting documentation.

Genesis Law Firm has a proven method of success in NIW applications.  Part of the key to our success has been how we tailor each NIW applicants’ evidence and supporting documentation specifically to his or her strengths.  For example, one type of document that we always take painstaking efforts to review ourselves and submit along with a NIW application is the letter of recommendation.  We do not advise using cookie-cutter letters of recommendation; we always review each letter of recommendation for our clients and ensure that the letters highlight our clients’ strengths so that they comport with the requirements of the NYSDOT case.

Letters of recommendation should come from researchers, scientists or engineers who have cited to the applicant’s work, or who have used the applicant’s work in other ways.  Letters may also come from the applicant’s past or advisors or professors or editors of journals in which the applicant has published.

“The sky is the limit” regarding other evidence that may be submitted.  Each NIW case is unique, and each NIW case should be approached with a fresh mindset.  The old adage, “quality over quantity” applies in NIW cases; USCIS looks favorably on quality rather than quantity.  Genesis Law Firm will advise you on which evidence will be seen as “quality” in the eyes of USCIS.

Genesis Law Firm not only handles NIW petitions from the outset, but also handles Requests for Evidence (“RFEs”) and Appeals to AAO for NIW applicants who used other law firms or self-filed.

The NIW program is subject to regulatory change and judicial interpretation, so it is important to keep up to date on news and developments on the subject.  Genesis Law Firm keeps our NIW clients informed of all the latest developments when they relate to our clients’ cases.

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