There is some confusion amongst prospective applicants who are seeking a National Interest Waiver (NIW), but aren’t sure if their specialization or field they are working will be good enough to show they are advancing a proposed endeavor that is in the “national interest”. Although some immigration blogs and online sites might stress national importance, it is important to recognize that these guides might be outdated, or they might simply have false information.
Rather, applicants should be aware of the current burden of proof that is needed to satisfy an NIW application. This means that an applicant should have an understanding of the post-Dhanasar ruling, and the shift from being an innovator of national importance to one that has substantial merit. This will help applicants decide if they are really eligible for the NIW before they start compiling paperwork and filling out the I-140.
What is Substantial Merit?
Prior to 2016, the NIW required a different set of proof and was actually harder to obtain because immigration law interpreted that only candidates who contributed to the national interest on the macro scale eligible for the waiver. However, this changed in 2016 when district courts in the State of New York decided that the burden of proof that was necessary for granting an applicant a national interest waiver should no longer be only for those who have a proposed endeavor that benefits the entire nation. The scope was thought to be too large, and also confusing for entrepreneurs who focused on sole communities before scaling their operations. Thus, the U.S. was losing talented foreigners who could not receive an NIW because the law dictated they were ineligible.
As such, the substantial merit clause became part of the adjudication process in USCIS NIW cases in the latter part of 2016. This is the ruling that is currently in effect and means that an NIW applicant can be working on a project, innovation, or research whereby a local impact can have national importance. This really changes the application process because it allows certain entrepreneurs, as well as those focused on educational outcomes, to apply their locally-led endeavors to a national context and be eligible for the waiver.
Case Examples and the Local Context
Perhaps the best example for an NIW applicant who might be eligible for a waiver and is able to prove substantial merit is the entrepreneur. Entrepreneurs are different from researchers who apply for an NIW, for example, because they are individuals who are usually service-oriented—meaning they are looking to bring a product or service to the U.S. market. Think of an entrepreneur who is creating useful Apps for a U.S. community. The applicant might be able to argue that their App, although not benefiting the entire nation, is useful for a particular community setting, and eventually could be scaled up and become a major part of the U.S economy.
If you are an applicant and are unsure of whether your specialized endeavor will make you eligible for an NIW, try to see if you can prove substantial merit before you can prove national interest. As a general rule, this means looking at your project, research, thematic concern and applying it to local contexts before you apply to what is considered national in scale. If you are able to start small and trace your proposed endeavor in a clear manner at the community level, this might go a long way in your USCIS adjudication processing.
For more information, please view the Department of Justice’s filing of the Matter of Dhanasar case, available here: https://www.justice.gov/eoir/page/file/920996/download
