Some Misunderstandings Regarding NIW Petitions

The national interest waiver (NIW) under the 2nd preference employment-based immigration visa category has become popular recently, because of the unique advantages that it offers to petitioners.  Unlike the other 2nd and 3rd employment-based preference categories, petitioners do not need sponsorship by a qualified U.S. employer.  Unlike the PERM labor application process, a job offer is not required for a national interest waiver petition.  It means that a foreign national may file their own petition for an immigration visa without first securing a job offer by an employer.   For instance, a graduate student may start her application before she even graduates.  However, despite this advantage, an NIW petition is not a trivial petition that is suitable for all applicants.  

Some immigration consultants and practitioners promote NIW as something that is easy to qualify, a short-cut to obtain a green card.  This couldn't be farther from the truth.  Although an NIW petition generally requires fewer qualifications than an EB-1A extraordinary ability petition, it has its unique set of criteria for which the petitioner must qualify.  Certainly, not all applicants with just a graduate degree, albeit in the STEM field, would qualify.  In fact, if a petitioner does not have a graduate degree, he may still qualify by showing that he possesses exceptional ability.

As a threshold requirement, a petitioner must establish that their proposed endeavor has both substantial merit and national importance.  An endeavor is simply the type of work that the individual seeks to engage in.  One common misconception is that simply by working in a meritorious field, an individual would qualify for NIW.  For example, an individual could be working in the field of medical research, which has national importance.  However, if person's work is only tangential or relatively routine, then it would be difficult to argue that this applicant's endeavor has substantial merit and national importance.  To evaluate whether the proposed endeavor has merits and national importance, we must look at the details of the work and provide evidence that it has potential prospective impact in the field.  In this case, if the applicant's research provides new insights about the cause of a specific type of cancer, then his argument would be stronger.  

Another common misunderstanding is that NIW is only suitable for applicants in the medical or scientific fields, as they are required to conduct experiments and publish research papers.  True, publication of research papers is a type of evidence that can be used to illustrate the petitioner's scientific discoveries and their impact.  However, professionals in other non-scientific fields may also qualify for an national interest waiver by presenting other types of evidence.  For instance, a financial professional can provide evidence to prove how their work has maintained the financial stability of an organization or the whole country.  An architect can present evidence to show that their work will bring environmental benefits by using sustainable design and reusable materials. A software engineer may have designed a system that has the potential to revamp the way we, as a nation, conduct business, process data, or perform certain activities. All these are possible candidates for NIW. 

A petitioner should not only list the possible things that he or she can possibly do as their proposed endeavors.  For example, an experienced software engineer cannot simply list all the possible software applications that she may design in the future, as her proposed endeavors. To present a strong and convincing NIW petition, she should only focus on the tasks that she will realistically be able to perform, if her NIW petition is approved. For instance, if she is working on developing AI data pipelines now, she should focus on this specific area.  

To qualify for NIW, a petitioner must also prove that they are well-positioned to advance the proposed endeavor.  As explained, one must first define well what their proposed endeavors are, with sufficient details and information.  Then, with these endeavors in mind, explain how the person's education, background, training, work experience, etc., will enable the person to perform the work involved. Also, are there any realistic opportunities for the person to perform these tasks?  Is the petitioner already doing what they propose to do, or are there plans to start a new company?  To increase the chances of approval, there must be a realistic and workable plan for the person pursue the proposed endeavors, if they are granted an NIW-based green card

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)