National Interest Waiver is an Employment Based petition.

Most of the employment based immigration categories require an employer sponsorship. NIW does not need the employer’s sponsorship. The applicant can file the petition himself/herself.

NIW also avoids the labor certificate procedure, which is a lengthy and complicated process. The labor certification process exists because it is in the national interest to protect the US worker’s job opportunities. The applicant has to establish 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.

The current NIW cases adjudication standards were set by a 1998 case. In New York State Dept. of Transportation EAC 96 063 51031, (AAU, Aug. 7, 1998).

The applicant needs to prove:

  1. That he/she seeks employment in an area of substantial intrinsic merit;
  2. That the proposed benefit work is national in scope; and
  3. That the national interest would be adversely affected if a labor certification were required.

The standards, although enumerated, are still quite vague. It is easy to prove the first two criterion, but hard to prove the third.

The applicant needs to submit documentary evidence to prove that:

The applicant’s specific prior achievements justify the projected future benefits.

The applicant possesses unique and innovative skills, knowledge and background that serve the national interest

The applicant will serve the national interest to a significantly greater degree than others with minimum qualifications

Need for The applicant’s continued participation in his current work.

The applicant needs to submit recommendation letters to prove his/her contributions and impact to his/her field of endeavor. The referee has to be working in the same area as the applicant. Professors, colleagues, editors with established track record are good referee candidates. Researchers from national laboratory or from the public office are also good referee candidates. Independent referees are very important. Independent referees are those outside of the applicant’s circle of colleagues and acquaintances. The USCIS believes that independent referees are more impartial because they are not doing the applicant a personal favor.