Taking a Closer Look at the First Prong Test for NIW Applicants

Receiving a national interest waiver from the USCIS means that an applicant will need to pass a difficult three pronged test to see if they are eligible for such a waiver to come to the United States and begin working legally in the country. Because the NIW does not require Department of Labor (DOL) certification, and is based upon how the applicant’s professionalism will benefit the U.S. economy, the three pronged test is used, first, so the USCIS can have an understanding of the applicant’s profession and the work they have already done, but also to infer how such work/experience/certification will be applicable in a U.S. setting.

What are the 3 Prongs?

While this blog will be dedicated to better understanding the first prong for analytical purposes, let's briefly recap what the three prongs are:

1.     The foreign national's proposed endeavor must have both substantial merit and national importance.

2.     The foreign national is well-positioned (in their career) to advance the proposed endeavor.

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

Focusing on the 1st Prong

While at first glance it might seem like each prong is relatively easy to satisfy, in reality each prong can be further divided up into a list of different factors that will affect whether or not the applicant is able to pass each prong successfully. For example, in the first prong, the key words that are important “substantial merit”. What does substantial merit mean? How would an applicant show evidence that their profession and proposed endeavor have any merit?

First off, if we think about substantial merit, we should also be thinking that whatever does merit in the context of a career for NIW applicants should also hold national importance to the U.S. In other words, if you can satisfy the substantial merit part, then you should automatically be able to convince a USCIS officer that such merit also serves a national importance.

Here is a hypothetical list of proposed endeavors that would have merit and assist the U.S. in national importance. Also keep in mind that national importance changes from generation to generation. For example, with the advent of climate change, careers that help mitigate the effects of climate change would be considered part of U.S. national importance since the issue has become a central one for our generation:

1. A proposed endeavor that would help provide more affordable housing options as it has become highly evident in recent years that homelessness has increased in major cities across the U.S. and wages in many sectors have remained stagnant.
2. A proposed endeavor that would improve environmental well-being for Americans. For example, as cities in the U.S. become more densely populated, with more and more millennials moving to U.S. cities for career opportunities, how would the proposed endeavor seek to ameliorate increases in car pollution, polluted water sources, traffic congestion, etc. How does the proposed endeavor make cities more eco-friendly and equitable?
3. How does the proposed endeavor seek to effect change in the educational system? It has become a well-known fact that the cost of four-year colleges and universities have skyrocketed in the U.S. In the same vein, what tools can be utilized for educational reform across school systems that don’t receive enough funding or resources for their students? A proposed endeavor in the educational sector would need to address one of these systematic problems.
4. How does the proposed endeavor help protect workers/working conditions for U.S. laborers? Recent headlines have suggested that Amazon warehouse workers are constantly under surveillance and can be fired for underperforming while having little opportunities for career growth. Such an individual would need to have a policy background and possibly benefit a U.S. government agency to tackle this issue.

Proposed Endeavors vs. Lasting Solutions 

In the above list, we can see that some solutions would require an actual good or service, for example, a cost-effective textbook that could be paid for by certain school systems without hurting their annual budget for school supplies. But buying a new textbook still doesn’t address the issue of hiring good teachers, so maybe a professional whose proposed endeavor was developing HR software that helped hire better teachers in underprivileged districts would be a better option.

That would be a proposed endeavor that has substantial merit since it addresses a root problem of underprivileged school districts, that could be applied in a national context or in multiple districts as well.

Thus for satisfying the first prong, the proposed endeavor should really be able to tackle systemic problems, or should have an approach that seeks to competently address systemic issues that are of national importance to the United States.