What You Need to Know About National Interest Waivers

Are you involved with an important project which could benefit the U.S. and its people? Are you simultaneously looking for a visa that allows you to live and work here? Have you found any suitable visas yet? Perhaps you struggle to get a job offer that has already gone through labor certification (which is hard to get and may take a while to clear). What can you do to remain in the U.S. to complete your endeavor which is of national interest?

You could maybe be eligible for a National Interest Waiver (NIW) as you apply for your visa. This waiver will help grant you a visa and authorize you to work on your project. Here you can find some more information on how it works.

What is a National Interest Waiver? 

Immigrants and tourists coming to the U.S. need some kind of authorization to gain access to the country legally. These authorizations mainly come in the form of visas. Visas allow specific types of people to engage in specific activities while on U.S. soil. Tourists get tourist visas and people traveling for work-related reasons get employment-based visas. But sometimes you may fall in the little gray areas in between these groups. All of a sudden it becomes really hard to get a visa and it may derail an important aspect of your life.

The U.S. government recognizes the importance of the work and research provided by immigrants. Often times they encourage the assistance and furthering of the work provided by immigrants. So much so that they are willing to waive certain requirements for certain visas to allow people from abroad to continue their work. But these waivers are only available to people who benefit the country as a whole. You could be eligible if your work is of national interest, hence the name National Interest Waiver (NIW).

An NIW allows you to apply for an employment-based visa even if you don’t yet have a written job offer and whether or not that job has cleared labor certification at the DOL (Department of Labor). Let’s have a look at who needs an NIW.

Who Needs an NIW?

People who apply for employment-based 2nd preference visas (EB-2) could apply for an NIW if they are eligible. The following people can apply for an NIW.

• People with an advanced degree in science, art, or business
• People with exceptional ability in science, art, or business

You must have either an extraordinary ability or an advanced degree in science, art, or business. And then obviously, your work must be of national interest to the United States. An NIW then waives the requirements which may keep you from continuing your work which benefits the country and its people.

People from mainland China and India can also be eligible for an NIW but only after visa numbers for the EB-2 category for their countries have been confirmed. They can only get a visa if there are visas available.

How to Complete the NIW Application Process

An NIW application process is also called a pre-filing. There are a few types of steps and documentation required in this process. Here follow the documents required for an NIW pre-filing:

• Immigration Petition for Alien Worker (Form I-140) – The application through which you apply for the visa.
• Alien Employment Certification Application (Form ETA-750B) – The form with which a foreigner (alien) applies for labor certification at the Department of Labor.
• Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) – Only applicable if a legal representative files on your behalf.
• Petition Letter – A letter addressed to the USCIS (U.S. Citizenship and Immigration Services) which forms the basis of your NIW application. This letter explains to the officer who handles your case why you should be considered for the program. The evidence stating your eligibility for an NIW must be included.
• Supporting documentation – Documentation that supports the petition letter like awards, qualifications, and other types of proof we’ll get into shortly.

The petition letter must be well written at a professional level of English. Immigration lawyers are experts at this kind of work and often need to present the cases of their clients for immigration-related purposes. The letter needs to satisfy the adjudicating USCIS officer’s demands. The letter can also help grant context for the supporting documents added to the application. 

Here is a list of the supporting documentation which could prove helpful:

• Letters of recommendation from experts in the applicant’s field
• Evidence proving the applicant’s work is of national interest
• Evidence of membership in professional associations
• Evidence of funding or grants for the research project at hand (if applicable)
• Curriculum vitae including awards, honors, etc.
• Publications, publication requests, conference presentations, etc.
• Multiple non-self citations in journals to prove the applicant’s impact on their field
• Other invitations or acknowledgments for peer review work completed at conferences or for journals.

Make sure your application contains all the required documentation. Provide sufficient proof of your eligibility. Without it, you won’t be able to convince the USCIS officer. An immigration attorney would most likely give you the best possible advice as to how to present your case to have the best chance of success.

After Submitting Your NIW Petition

The process after submission depends on how you submitted your application. If you used an attorney to submit on your behalf, you can keep referring to them for progress and any other advice. But the USCIS will send you a receipt notice (Form I-797C Notice of Action) when they receive your case. This means your case has now been received for processing. The date on which your application package is received is your filing date and is also referred to as the priority date. The USCIS takes between 1 or 2 weeks to receive your case.

NIW Processing 

Each USCIS processing center differs. They may take longer than another center to process your case. It may take between 3 and 9 months for the USCIS to reach a decision. This can take longer depending on how busy the center and its officers are. There are 4 different possible outcomes for an NIW case. They are as follows.

NIW Approval

The USCIS is satisfied with your petition and approves it. They’ll mail you a Form I-797 to confirm their decision. This is the best possible outcome.

Request for Evidence (RFE)

The USCIS is not yet ready to decide your case. They may need some extra information regarding certain aspects of your application. They will ask for more evidence by mailing you a Request for Evidence (RFE). You have about 80 days to respond to an RFE.

Notice of Intent to Deny (NOID)

The officer who reviews your case may decide to deny it. This is especially the case if you don’t have any additional documentation to prove your eligibility. The NOID works roughly the same as an RFE, except the officer explicitly states their intention to deny your case. You have another 80 days to supply evidence that may convince the officer otherwise. Use the time wisely to gather as much compelling evidence possible. You have a chance to convince the officer to overturn the decision. Try your best to do so.

Outright Denial

The officer adjudicating your case decides you don’t have enough evidence or you may not fulfill the minimum criteria required to be eligible for an NIW. The officer will deny your application through a denial notice. If you play your cards right you might be able to reopen your case with the USCIS. Ask an immigration attorney how you would have the best chance of doing so (if applicable).

After Your USCIS Decision

Assuming that the USCIS approved your case, they’ll mail you or your attorney an approval notice. This means you got your NIW and are eligible for your Green Card. Start the process of applying for adjustment of status (Green Card application). You can do so as soon as there is an immigrant visa number available for you.

NIW immigrants are eligible for an immigrant visa number except for people from mainland China and India. People from China and India need to wait a few years until a visa becomes available. Only then are they eligible to apply for adjustment of status.

If your case is denied and you decide to appeal you’ll have three options at your disposal. They are as follows:

1. You can appeal the decision if you believe the USCIS made the wrong judgment.
2. You can file a motion of reconsideration which asks the USCIS for a different officer to review the case.
3. You can file a motion to reopen the case if you found more evidence which you believe could satisfy the demands as made by an RFE previously issued for the case.

Follow these tips according to the outcome you received. You can ask for legal advice from immigration attorneys. They may be very useful if you need to convince an officer if you reopened a case.

Conclusion

Are you looking to complete a body of work in the U.S. or do you perhaps hold employment that is of national interest to this country? Are you in need of a visa to continue this groundbreaking endeavor? You could perhaps be eligible for an NIW which will grant you that privilege.

Use the information provided above to help you improve your chances of a successful NIW application. It will help you continue with your exceptional work and perhaps even lead to a Green Card.

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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