National Interest Waiver (NIW) FAQ
Questions? We are here to help.
What is the main benefit of having a National Interest Waiver (NIW) from the standpoint of an employer?
The main draw is that an employer does not have to file for a PERM certification with the Department of Labor (DOL).
What kind of degree do you need to hold in order to qualify for a National Interest Waiver?
The focus of the National Interest Waiver (NIW) applicant is not necessarily the degree, although the minimum degree requirement is a Bachelors (4-year college). The greater focus, however, for a qualifying NIW applicant is meeting the standards of the three prong test to see if they are economically beneficial when they arrive in the United States.
The USCIS will grant an NIW to applicants who can demonstrate that they meet all three conditions of the 3-prong test. What are these requirements?
The requirements are as follows:
- The applicant is working, or has a career, in an area of substantial intrinsic merit that is valuable to the U.S. economy. Examples include any type of life sciences researcher, or perhaps those who work in policy because there work has the possibility to make society better.
- The applicant’s work has a national scope. An applicant with publications can prove, because their work has been disseminated on a large scale, that there is a national impact to their findings or that there specific workings have an impact on a sector that is critical to the nation.
- The USCIS would be wise to approve the NIW without a PERM certification because the applicants contribution to a particular field/industry in the United States is too great to ignore.
Is there a fee to apply for a national interest waiver?
Yes, there are fees associated. Applicants receive the NIW, but it is not an actual form they need to fill out and pay a fee for. Instead, applicants are usually applying for an EB-2 (Employment based, second category visa), which has its fees associated with it. In such a case, an applicant will pay these fees as a self-petitioner, and then determine if they have received an NIW:
- I-140 Fee, $700
- I-485 application, $1140
- Biometrics, $85
- DS-260 (for Consular Processing Applicants Only), $325
Where do I select that I am applying for an NIW?
On the actual I-140 Petition. Applicants will see in Part 2: Petition Type, they need to Select Option 1H—“An alien applying for an NIW”.
What is the AAO?
The AAO stands for the Administrative Appeals Office, an office within the USCIS. The branch is used for petitioners to appeal adverse decisions made on applicants’ petitions.
Why is the case Matter of Dhanasar that was brought to the AAO in 2016, important for NIW applicants?
The case recognized that evidence of the applicant to create significant economic impact is not always immediately quantifiable and thus moved away from the geographic importance of “national in scope”.
Are past achievements a good predictor for the USCIS to determine whether an NIW is worthy of being granted?
Not necessarily. The Dhanasar case admitted that past achievements are not the only predictor of ones future success in a job or profession and that if a USCIS decision is appealed, the applicant can draw from other experiences and relevant factors to determine if they will be a success working in the United States.
Why are reference letters so important when attaching them to an NIW application?
Reference letters give first hand stories and accounts from previous managers and employers as to the applicants skills, and times when they have been successful in advancing their field for a greater purpose. The USCIS can see from letters of reference some of the qualities that make the applicant in question exceptionally good at what they do.
What are some other forms of evidence needed to attach to my NIW application?
Applicants need to attach the following to their NIW application:
- University transcripts
- Letters of Recommendation (showing at least 10 years of full-time experience in an occupation)
- Recognition of achievement via awards or publications (if applicable)
- Membership in a professional organization (if applicable)
- License (mainly for physicians)
If you don’t have any publications, can you still apply for an NIW?
Yes. Publications might be important for those who are working in government affairs or journalism, but not necessary for an engineer or other professions where having written work is a priority.
What is the total EB-2, NIW processing time?
The USCIS typically adjudicates these types of applications within a time frame of 3 to 9 months. However, if at that point an RFE—Request for Evidence is issued, the process could take longer. The average RFE is responded to by the USCIS in a period of 60-90 days according to Nolo, a legal Encyclopedia.
Is it possible to qualify for an NIW in another Employment-based preference category besides EB-2?
Those qualified for EB-1 status can also apply for an NIW. Please see the following link provided by the USCIS that gives more information on the qualifications of an EB-1 applicant: https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1
Is premium processing available on NIW applications?
No, premium processing is not an option for NIW applicants.
It might be more straightforward to show evidence of abilities as a researcher, physician, or engineer when applying for an NIW, but what about artists or creatives?
Contributions can be shown in a variety of ways, and they don’t always stem from publications in an academic journal. If you are an artist with exceptional abilities, some considerations for evidence in your case might be the following:
- Evidence of artistic displays in exhibitions or galleries
- Commercial successes in the performing arts
- Any other meaningful contribution that can be judged as having an impact to a certain degree
How does one's salary relate to the NIW application?
Applicants can check their salary as it relates to others in their field or occupation to see how they size up to others in the same industry. Generally, the USCIS is looking for evidence via W-2s or pay stubs that you are a leader in your field.
What stages of the application process might require the assistance of an attorney or paralegal?
If you receive an RFE, applicants are usually advised to seek the counsel of an experienced attorney who has dealt with similar immigration cases. In addition, paralegals can help applicants prepare their letters of reference for submission to the USCIS.
Are entrepreneurs eligible for an NIW?
There is no simple answer to this question, it depends on the history and experience and field the individual is working in. Some entrepreneurs with a history of business management experience or a law degree would qualify. The other major component to being granted a NIW for the case of entrepreneurs would be to stimulate a depressed area of the US economy and in turn create jobs for US workers.
What does “well-positioned to advance the proposed endeavor” mean?
In every field or sector of the economy, there are far-reaching goals and professionals seeking to achieve these goals through their own means. For example, working in the engineering field these days might mean making entire communities less reliant on oil and gas and more reliant on renewables. NIW applicants, accordingly, should be able to show in their application how they plan on achieving, or working toward, such goals in their line of work.
What are some examples of advancing the proposed endeavor?
Being able to model or plan future activities, having an interest in a potential customer base, a prior record of success, and investor relations.
If you are not a teacher, is teaching still relevant to an NIW application?
Yes, it could be. An entrepreneur with a history of teaching at a university shows their command of a subject area/expertise even though their interests are business related.