NIW(National Interest Waiver) USA

National Interest Waiver Green Card
of
the United States of America

 

Prepared by Fredrick, Lee & Kim                                                        Last update: July 9, 2020

 

 

1. Introduction

There are 5 categories in the employment based (“EB”) immigration to the United States of America: EB-1, EB-2, EB-3, EB-4 and EB-5. Those categories generally require sponsorship from a U.S. employer which includes an offer of permanent employment in the United States. Also, some require additional certification from the U.S. Department of Labor (DOL) through a Labor Certification process which itself can take anywhere from 8 to over 18 months.

 

However, the EB-2 National Interest Waiver (EB-2 NIW) category provides an exemption to both of these general requirements above, thus offering a significantly quicker process for qualifying foreign nationals to obtain permanent residence in the United States. To qualify, you pass two hurdles as follows:

First Hurdle

1)He or she is a member of the professions holding an advanced degree or its equivalent; or

2)He or she has exceptional ability in the fields of sciences, arts, or business.

 

Second Hurdle: You have to establish that you

1)Will work permanently in the U.S. in the national interest of the United States; and

2)Will serve the national interest to a substantially greater degree than would an available worker having the same minimum qualifications.

 

 

2.How to prove the “National Interest”? New Standard Since 2016

Although, the term “national interest” is not defined in the immigration statute and regulations, we have to follow a “three-pronged test” set out in the new case law (“Dhanasar” which overruled the old case decision “NYDOT”) to see if you have the national interest.

 

1)FIRST PRONG - Showing Substantial Merit and National Importance

If you have any merits in the fields including, but not limited to
-business,

-entrepreneurialism,

-science,

-technology,

-health,

-culture or

-education.

Unlike the NYDOT, You are not required to show that you have the potential to create a substantial impact, since USCIS recognizes some fields such as pure science and research may not directly bring into any economic benefits to the United States.

Potential prospective impact is sufficient. This impact is not to be evaluated solely geographically, but on a broader scale.

 

2)SECOND PRONG - whether the foreign national is well positioned to advance the proposed endeavor,

To pass this prong, you have to show such as

-the individual’s education, skills, knowledge, record of success in similar areas;

-a plan for the future;

-progress made in achieving the proposed endeavor;

-the interest of other related parties, such as users, customers, or investors.

You do not need to demonstrate that you are more likely than not to succeed in your fields.

 

3)THIRD PRONG - On balance it benefits the U.S. to waive the requirements of a job offer and labor certification

The following factors that may be considered in light of your background;

-whether it would be impractical for you to obtain a job offer or labor certification ;

-whether you would still benefit the U.S. even if other qualified U.S. workers are available; and

-whether U.S. interest in your contributions is sufficiently urgent to forgo the labor certification.

 

The third prong is actually a new prong, unlike the third prong of NYDOT, this third prong does not require a showing of harm to U.S. national interest or a comparison against U.S. workers in your field.

The NYDOT’s previous third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. Now more foreign nationals including those individuals may satisfy the requirements of the National Interest Waiver under the Dhanasar’s new 3rd prong.

 

WITH this more flexible third prong the NIW has become more applicable to a greater variety of individuals, even average corporate workers. However, the factors to be evaluated regarding this prong requiring that on balance, it benefits the U.S. to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification, and whether the U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. That is where excellent advocacy skills like Fredrick, Lee & Kim Immigration Attorneys’ will continue to play a critical role in obtaining an approved NIW petition.

 

 

THE LK PARTNERS U.S. Immigration 

Tel:+82-2-6013-2255, Email:info@leekp.com

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