NIW - EB 2A

EB2 (NIW) National interest waiver

 

 

Under this variant of the EB2 visa application process, an applicant will not require a job offer or a Labor Certification from the U.S. Department of Labor (DOL), as long as there is ample proof of the applicant’s usefulness to the nations interest.

 

EB2 National Interest Waiver (NIW) Application Requirements

 

Application Process for EB2 (NIW) for aliens with Exceptional Ability or a Professional Advanced degree

Under the EB2 or the Employment Based second preference category is a provision termed National Interest Wavier (NIW). Under this arrangement, an applicant need not procure a Labor certification or a permanent job offer. Therefore, in the EB2 (NIW) category the applicant can file a self-sponsored application.

The EB2 National Interest Waiver (NIW) requires the applicant to prove that he or she has exceptional ability or holds an advanced professional degree and is involved in an activity or cause that would benefit the U.S. national interest. Under such circumstance the applicant would be liable to file an EB2 (NIW), which also has its benefits over the usual Permanent Residency application process.

If the applicant meets the above-mentioned criteria, the applicant has to further establish eligibility using the following Three Prong Test in Matter of Dhanasar:

the foreign national’s proposed endeavor has both substantial merit and national importance;

the foreign national is well positioned to advance the proposed endeavor; and

on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

 

The applicant must provide evidence to satisfy at least three of the six criteria mentioned below to qualify as an applicant with Exceptional Ability in the field of science, art or business.

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 letters from current or former employers showing that the alien has at least ten years of full­time 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.

EB2 (NIW) evaluation process for a Professional holding an Advanced Degree

An “Advanced Degree” is defined as a postgraduate degree above that of a Bachelor degree. To qualify as an advanced degree professional, the applicant should meet the following requirements:

The applicant must possess a Bachelor’s degree, as the USCIS will not accept an education evaluation to determine an equivalent to a Bachelor’s degree.

The applicant must possess a Master’s degree, its equivalent or a higher level. Five years of progressive experience in the applicant’s specialty after obtaining the Bachelor’s degree would be considered an equivalent to a Master’s degree.

The applicants work experience cannot be substituted for the Bachelor’s degree.

In case the applicant’s specialty specifically requires a Doctoral degree, he must possess it.

An applicant not in possession of a Bachelor’s degree, be a U.S. degree of its foreign equivalent, will not be considered eligible.

 

Provisions required by the Three Prong Test for Matter of NYSDOT and Matter of Dhanasar for the EB2 (NIW)

In December 27, 2016 the USICS Administrative Appeals constituted and released a new and highly effective method of testing the applicant’s exceptional abilities. This came to be known as the “Matter of Dhanasar Three-Prong test and became established as the new test for evaluating and approval of the EB2 (NIW)

The NYSDOT analysis and testing method that was in practice has been discarded. It was considered to be confusing and led to unnecessary subject evaluation. Hence the AAO declared it was adopting a clearer framework for evaluating EB2 (NIW). The framework is stated below:

The following considerations will be taken into account while evaluating the applicant’s eligibility under the new framework in Matter of Dhansar.

the foreign national’s proposed endeavor has both substantial merit and national importance;

the foreign national is well positioned to advance the proposed endeavor; and

on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The USCIS may approve the National Interest Wavier as a matter of discretion upon the satisfactory evaluation of the above mentioned.

The three prongs of the Three-Prong test adopted by USICS on the AAO decision for the National Interest Wavier:

Substantial merit and national importance – The applicant must provide ample evidence and substantiation that the proposed specialty will directly benefit society and positively impact people’s lives. This needs to be done with immense clarity and conviction.

Scope of implementation - The applicant must demonstrate how the above-mentioned specialty would be carried out in all terms and conditions. This too needs to be done with clarity and conviction.

Reason for Labor Certification circumvention – the applicant will find this prong the most difficult to overcome as it will require a well-crafted and convincing reasoning highlighting the high importance of the applicant’s work to the United States and hence would be important enough to waive a Labor Certification.

 

Evaluating the applicant’s case for NIW with respect to Matter of NYSDOT and Matter of Dhanasar

For the purpose of understanding the evaluation criteria while deciding the benefit of the applicant’s specialty to the nation as a whole, there have been cases in the past that have set precedents.

One such case in point, is the ruling in Matter of New York State Department of Transport (NYSDOT).

In this case when the question arose about the applicant’s employment in an area of “substantial intrinsic merit”, the USCIS concluded that earthquake engineering of bridges satisfied the test of “substantial intrinsic merits.”

When the question of the benefit being of national importance arose, the contradictions seemed evident. According to NYSDOT, the Administrative Appeals Unit stated that the New York bridges and roads facilitated interstate commerce and therefore served the national interest of the U.S. At the same time, the Administrative Appeals Unit indicated that the impact of professionals such as attorneys, school teachers or chefs were “so attenuated at the national level as to be negligible.” This contradicted the earlier opinion issued by the Administrative Appeals Unit, which concluded that small national interest was sufficient even if the specialty indirectly benefited the nation through regional or local action.

Next arose the question of the quantum of national interest being adversely affected if a Labor Certification was required of the applicant. This evaluating standard focuses on the applicant. The NYSDOT case stated that the very purpose of the Labor Certification was to protect U.S. workers from being displaced by foreign workers and therefore the applicant must convince the INS that the national benefit of a Labor Certification exemption was “so great as to outweigh the national interest inherent in the Labor Certification process.”

The other case in point has been the Matter of Dhanasar (AAO, December 2016). This case of the EB2 (NIW) adopted a more flexible analysis in order to benefit more applicants. The important points the case made were as follows:

The applicant held two Master’s degrees and a Ph.D. in the field of developing air and space propulsion systems,

He was serving as a Postdoctoral research associate and had developed novel models.

The applicant also provided evidence of publications citing the work.

He had membership in professional associations,

He provided documentation regarding teaching activities

He submitted letters of recommendation from experts in the field.

 

The AAO granted an NIW after noting the applicant satisfied all Three Prongs of the new test over and above funding from national science agencies. This new analytical approach created a clearer framework by also recognizing the service of a broader range of endeavors by a foreign applicant’s benefit to national interest could be of “potential prospective impact” rather than a concrete and existing one.

The new framework allows for a wider range of foreign applicants for the NIW. They include:

Junior Scientists

Postdoctoral Scholars

Biomedical Researchers

Entrepreneurs involved in job creation

Investors

Academic Physicians

Advanced level graduate students, particularly those involved in the STEM disciplines

Artists operating at a national level

 

Evaluation of the First Prong of the Three Prong Test with regard to Matter of NYSDOT and Matter of Dhanasar

The first prong states that the applicant must show the field of specialty mentioned would be of substantial intrinsic merit to the United States. This prong would be the easiest to demonstrate when compared the other two. The field of substantial merit, apart from scientific research, also included arts, social sciences, business, health, safety, economy, environment, education and engineering, thus making it more inclusive.

After the ruling in the 2016 case of Matter of Dhanasar, the new first prong would be “the foreign applicant’s proposed specialty has both substantial merit and national importance.” Regarding the “substantial merit and national importance”, the USCIS Administrative Appeals Office (AAO) noted that the applicant’s beneficial merit can be shown in the field of business, entrepreneurship, science, technology, health, culture or education. It also held that the applicant was not required to demonstrate the potential to create a substantial impact as it acknowledged that pure science and research may not translate into economic benefits for the United States.

The AAO further emphasized that the national importance and substantial merit requirement was focused on the specific endeavor the foreign applicant planned to undertake and that the merit could be demonstrated in a range of areas, thus the potential to create significant economic impact was favorable but not absolute.

 

Evaluation of the second prong of the Three Prong Test with regard to the Matter of NYSDOT and Matter of Dhanasar

The second prong states that the applicant “must show that the proposed impact of the work would be of national significance.” This meant that the employment could be limited to a particular geographic area but the work would benefit the nation as a whole. Therefore, the benefits of the applicant’s work should not be limited to a particular geographical location of the United States. For instance, if an applicant is to work in a particular hospital, it would appear that the benefit would be limited to the location of the hospital. But, should the applicant demonstrate the development of new procedures or techniques that could be implemented in other hospitals, then the national benefit could be established.

With regard to the Matter of Dhanasar, the second prong switches the focus to the applicant and examines weather the applicant would be able to advance the proposed endeavor. In order to do this, the AAO included certain non-exhaustive factors to be considered. The following factors include but are not limited to:

The applicant’s educational qualification, skills, knowledge and records of success.

A plan for the future or a vision.

The applicant’s progress in achieving the proposed endeavor.

The level of interest of other parties such as users, customers or investors.

 

Evaluation of the third prong of the Three Prong Test with regard to the Matter of NYSDOT and Matter of Dhanasar

The third prong states that the applicant “must show waiving the labor certificate requirement would benefit the national interest of the United States.”

The Labor Certification process had been established by the U.S. Department of Labor (DOL) to protect U.S. national interest by ensuring that the wages and working conditions of U.S. workers employed in the same field would not be adversely affected. Therefore, when deciding upon an approval to waive the labor certification requirement for an EB2 (NIW) application, the USCIS would look at all evidence submitted to decide if the national benefit is so great that it outweighs the U.S. national interests inherent in the Labor Certification process.

Evidences that would help establish reasons to waive the Labor Certification requirement could include:

Copies of published articles that cite and recognize the applicant’s achievements.

Copies of grants or funding received by the applicant listing the amount, terms as well as the names of the principle and co-investors.

Documents showing how the applicants work is being implemented by others, for example:

Contracts with companies using the applicant’s products

Documents showing licensed technology the applicant or the applicant’s company invented or co-invented and how that licensed technology was being used by others

Patents or licenses awarded to the applicant or the applicant’s company with documents showing its usage and significance to the field.

With regard to the Third prong of the Matter of Dhanasar case, the AAO has listed the following factors that may be considered in showing that “on balance it would benefit the U.S. to waive the requirement of a job offer and labor certification as a foreign applicant”:

Whether it would be impractical for the foreign applicant to obtain a job offer or labor certification on the foreign applicant’s behalf

Whether the specialty would still benefit the U.S if other qualified U.S. workers were available

Whether the U.S. interest in the foreign applicant’s national contribution is sufficiently urgent to forgo the Labor Certification

The AAO later eliminated the requirement of comparing the foreign applicant to other U.S. workers in the same field and stressed that the new test was more flexible to allow for more foreign applicants to satisfy the requirements of EB2 (NIW).

 

Ways to successfully meet the requirements of the third prong test for NIW

To make a case in point for the applicant’s approval of the third prong requirement the following points should be crafted and presented to the best of the applicant’s ability:

The foreign applicant would play a critical role in the project and it would be unable to continue the project without the applicant’s contribution.

A specific area of scientific advancement would be hindered without the applicant’s continued presence in the United States.

A U.S. national goal would be compromised without the applicant’s continued presence in the United States.

Another important consideration in this process would be to prove that the applicant has “some degree of influence on the field of specialty as a whole.” This can be substantiated with the following:

The applicant should present publication records to establish past achievements, these could be in the form of journal articles, presentations, books, chapters, patents and publication citation records. A publication record accompanied by citation records would hold more merit as it would demonstrate the influence of the applicant on the field and also that the work has been recognized in the field.

The applicant should present recommendation letters or reference letters. The independent reference letters would carry more weight than reference letters from dependents. Independent recommenders are those that have never worked, collaborated or advised the applicant in the field. The reference letters should discuss the applicant’s contribution to the field in detail and comment on the benefit of the work to the United States.

 

The importance of an Advanced degree for National Interest Waiver Application

An advanced degree certification (Master’s degree or higher) is a must when applying for the EB2 (NIW). The evidence for advanced degree may be presented through the following documents:

A copy of the applicant’s official academic record, either an U.S. advanced degree or its foreign equivalent. It should be complete with details like date of attendance, area of specialty and the date the degree was awarded.

A copy of the applicant’s official academic record showing a U.S. bachelor’s degree or a foreign equivalent and evidence in the form of letters from current or former employer showing that the applicant has at least five years of progressive post baccalaureate experience in the specialty.

Letter of experience which must be on an official letterhead, must list the employer’s name, address, date, the signatory’s name, title, description of the applicant’s experience including dates of employment and specific duties

 

Provisions made for consideration of Self-Employed Individuals for NIW

There have been instances where self-employed individuals were considered for the Labor Certificate wavier even though they seemed ineligible for it, an example being a self-employed environmental engineer who received approval because of his self-employment.

However there have been instances self-employed individuals were denied Labor Certification like in the case of a trade specialist, the NIW application was rejected on the basis that the record was unclear as to the applicant’s standing in the field.

 

Provisions made for Physicians with regard to EB2 NIW

The U.S. Congress has resolved the earlier issue of the J1 visa for foreign medical graduates, which involved the granting of a waiver of the two-year foreign residence requirement based on the sponsorship by an interested government agency.

After the NYSDOT decision, the U.S. Congressional legislation also stated that such foreign medical graduated physicians could be granted the EB2 NIW if they were willing to work fulltime in a designated health professional shortage area (HPSA) or in a Veteran Administration (VA) hospital for a minimum period of five years.

 

Provisions made for an applicant with a low citation record

The United States Citizenship and Immigration Services (USCIS) has no set limit on the maximum or minimum number of citations. Generally, the USCIS will review all available documents including publications, reference letters, educational documents, experience certificates, peer reviews, memberships, finished projects and citation records. The citations being a quantifiable measure of merit will always be scrutinized by the USCIS.

On the other hand, applicants with few or no citations should provide alternate explanations such as working for certain industries or private firms where intellectual property considerations or national security considerations supersede the publication of their work or research results.

Applicants with few citations could also include patented models or designs, which could influence the industry on a national scale. Strong recommendation letters that sufficiently portray evidence of the growing influence of the applicant’s work in the field also serve as strong evidences.

The following example is an AAO decision to grant the NIW to the applicant who had only one citation but had designed an important software package that demonstrated national interest.

“While frequent citation can certainly bolster a researcher’s claim to have influenced the field, the lack of frequent citation is not a bar to eligibility where other objective evidence of the applicant’s influence exists. Engineers designing new technology may not disseminate their most significant work for intellectual property reasons or because it is limited to a narrow segment of the field. Other evidence, such as licensing agreements or affirmations from government agencies or industry officials who have adopted the technology must be considered.”

 

How to approach the EB2 NIW application with no scholarly publications or citations

The approach for applicant’s in the Highly Specialized field

When an applicant doubts the chances of approval for the Green Card because of the lack of publications or citations, an optimal approach to strengthen the case should be employed.

Since in both the EB1 and EB2 immigrant visa application process, the first step would be to determine the applicant’s field of specialty, it should be presented accordingly. For example, instead of mentioning the field as Information Technology, it would make a stronger case to show that the applicant has risen to the top of the field of Microchip Design. Thus, narrowing the scope of the field to a highly specific one before starting the application process is a success strategy.

And by narrowing the field of specialty, the applicant can argue the existence of a small number of publications and therefore relatively low number of citations in the highly specific field.

Hence the approach with a highly specific field of specialization could provide additional support to the notion of the applicant’s vitality in the field. This can be further enhanced by using language like, “the hybrid field of…” or “the highly specialized field of…”in the application cover letter and reference letters.

 

The approach for applicants with Entrepreneurial Abilities

Applicants with entrepreneurial abilities should provide the most persuasive evidences. For instance, if the applicant has started a company within the United States and can show documents of employment data or fiscal contributions to the U.S. national economy, this evidence would provide critical support to the EB2 NIW approval.

The USCIS has displayed its willingness to approve the EB2 NIW for foreign entrepreneurs based on its experience with past EB2 NIW approval with the necessary clarification memos. For more information please also see "The EB2 National Interest Waiver Application for Foreign Entrepreneurs."

The approach for applicants with Professional Activities and Contributions in the field

The approach for an applicant without publications and citations would be through highlighting professional activities and contributions in the field that have benefitted the nation. These professional activities and contributions in the field could include business reports, commercial book publications, business or engineering models used on projects in several parts of the United States, consulting for national organizations or extensively downloaded articles or reports. The applicant should have the appropriate documentary evidence to support these claims in the form of testimonial letters, reference letters, copies of reports or statistics.

 

Provisions for the application of the EB2 NIW for U.S. Permanent Residency by a Foreign Physician

The National Interest Waiver for a Foreign Physician is only available for pediatricians, general internal medicine, family or general medicine, obstetrics, gynecology and psychiatry.

Applicants whose employment would be in the “U.S. National Interest” are not required to go through the Labor Certification process. Applicants may apply for a EB2 NIW if they intend to work at least five years in a medically underserved area (MUA) or at a Department of Veteran Affairs (VA) facility.  Here the NIW application will not require a permanent job offer and could be filed by an independent physician who need not be employed by an U.S. organization. The application should include:

A fulltime employment contract issued and dated six months prior to the date of filing the application, for the required period of medical practice or an employment commitment letter from a VA facility, if the physician is an employee.

If the applicant has established his or her own practice, the applicant must submit a sworn statement committing to the fulltime practice of clinical medicine for the required period. The applicant should also describe the steps taken or steps intended to establish the practice.

The applicant must submit evidence that he will provide fulltime clinical medical service in a medically underserved area and in a medical specialty designation by the HHS or at a VA facility.

The applicant has to obtain a letter from a U.S Federal Agency or State Public Health Department stating that the applicant’s work is or will be in the public’s interest. These letters should reflect knowledge of the applicant’s qualifications and describe the agency’s background and interest in medical affairs.

The applicant should also provide evidence of satisfaction or waiver of the J1 home residency requirement, if the applicant has received medical training in the United States as a J1 exchange visitor.

See Our Other NIW Pages

NIW-EB 2A Process

The Choices: EB 1A - EB-1B - EB 2A

NIW Request for Evidence

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