National Interest Waiver – FAQ

Q: What is the National Interest Waiver?

A: An alien may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his (her) admission to permanent residence would be in the National Interest.

There is no rule or statutory standard as to what will qualify an alien for a National Interest Waiver. The USCIS considers each case on an individual basis.

The procedure is to file the case with evidence to establish that the alien’ s admission to the United States for Permanent Residence would be in the national interest.

Q: Who qualifies?

A: Factors that have been considered in successful cases include:

The aliens admission will improve the U.S. economy.

The aliens admission will improve wages and working conditions of U.S. Workers.

The aliens admission will improve educational and training programs for U.S. children and underqualified workers.

The aliens admission will provide more affordable housing for young, aged, or poor U.S. residents.

The aliens admission will improve the U.S. environment and lead to more productive use of the national resources.

The aliens admission is requested by an interested U.S. government agency.

Many of our cases in which National Interest Waivers have been approved were supported by affidavits from well-known, established and influential people or organizations.

For example, an application being submitted for a scientist should contain affidavits from leading scientists, representatives, and from other organizations associated with the type of research to be pursued.

Documenting past achievements, as well as proof that the alien has already created jobs, turned around a business or created an increase in exports or other economic improvements should prove instrumental in gaining approval.

Q. What Is An Advanced Degree?

A: According to the U.S. Citizenship and Immigration Services (USCIS) regulations, an “advanced degree” means any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate.

A U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree.

Q: What is NYSDOT?

In the 1998 decision New York State Department of Transportation (“NYSDOT”), the Administrative Appeals Office of the former INS imposed additional eligibility requirements for the NIW category.

Specifically, NYSDOT established a three-part test to determine whether an alien meets these requirements. These requirements are as follows:

1) The alien must seek employment in an area that has substantial intrinsic merit. NYSDOT does not provide guidance on how to determine whether an area of employment is of substantial intrinsic merit;

2) It must be demonstrated that the proposed benefit will be national in scope; and

3) It must demonstrated that the national interest would be adversely affected if the employer is required to undergo the labor certification process, specifically in that

a) The applicant would serve the national interest “to a substantially greater degree” than an available U.S. worker having the same minimal qualifications, and

b) The applicant has a record of achievements “with some degree of influence on the field as a whole”, as demonstrated by a “history of valuable contribution” and a “critical role” in ongoing work in the field which has practical significance.

In order to satisfy the third component of the test, it must be shown “that it would be contrary to the national interest to potentially deprive the prospective Employer of the services of the alien by making the position sought available to U.S. workers.”

In addition, NYSDOT further requires “that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”  This third prong of NYSDOT is the most subjective and challenging to satisfy.


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National Interest Waiver – Overview

National Interest Waiver – FAQ

National Interest Waiver – Attorney Services

Substantial Intrinsic Merit – The first NIW requirement

National Interest Waiver Green Card – Step by Step Kit

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