What is National Interest Waiver (NIW)?

In the case of a second preference employment-based submission, it is expected that you need to show evidence of potential employment and a work permit, although a foreigner can apply for a waiver of the employment offer, if he can prove that his permanent residence would be beneficial to the nation. For example, medical practitioners who sign on to work in locations where healthcare is limited, have a great chance of succeeding in obtaining the National Interest Waiver. Suchlike evidence needs to be tendered along with a completed I-140 form.

The proof of national interest does not make second preference classification automatic. The National Interest Waiver (NIW) relinquishes the requirement of evidence of a job offer, but not at all the prerequisites for second preference classification. Thus, we advise to ensure the second preference classification requirements before applying to a National Interest Waiver.

According to the Immigration Act, 1990, the requirements for the EB-2 NIW are “significantly above that necessary to prove national benefit”, but the law does not specify what “national interest” is. It is therefore up to the alien to prove that what he has to offer is an asset to the nation.

Based on precedent, the government will base its decision to grant National Interest Waiver (NIW) upon the degree of positive effects to community development. Some of the mitigating factors are:

  1. The extent to which an alien’s admittance will redound to the benefit of the national economy
  2. The extent to which the foreigner’s admittance will improve general labour conditions of citizens
  3. The extent to which the foreigner’s admittance will positively impact housing of nationals
  4. The extent to which the foreigner’s admittance will benefit theU.S.environment and the consumption of national resources
  5. Whether a government agency has specifically requested the alien’s admittance

Research based on the above and similar criteria, revealed that USCIS Service Centers had accepted national interest on such jobs as computer programmer for the dumping of radioactive waste and mall executive for a shopping plaza deemed by government to potentially boost the economy.

We undertook an examination of AAO judgments, and found the trends below:

  1. There is a higher approval rate of National Interest Waiver in the genre of sciences than for applications proffered for jobs in the business field. This implies that breakthroughs in science are easier to justify and prove.
  2. References from Government representatives are a definite asset. Most foreigners referred by government agencies are granted National Interest Waiver (NIW).

The pattern for approval of National Interest Waiver was first established in 1998 by the INS in the case of the New York State Department of Transportation. The judgment imposed more stringent standards than in the past. The AAO decided that National Interest Waiver (NIW) was contingent on:

  1. Area of considerable fundamental value
  2. Proposed advantage of national scope
  3. Noteworthy benefit in the National interest field

National Interest Waiver

(NIW) applicants should include the following information with their formal submissions:

  1. Details of prior achievement
  2. Specifics job description of the post to be filled
  3. Supporting documents from related professionals

Evaluations show a tendency toward item 1 above as being the most important determinant in a successful National Interest Waiver application. This may be because this is the most difficult to establish, as the approval board members have to be sufficiently convinced that past accomplishments for a foreigner surpass those of nationals in the same field.

Legislation passed in 1999 is advantageous to medical practitioners seeking National Interest Waiver (NIW) on the conditions that:

  1. The practitioner contracts to full time employment in a field appointed by the department of Health and Human Service in a location where there is a lack of adequate healthcare
  2. A government agency deems that the medical practitioner’s services is to the benefit of the local public

Only when the practitioner has worked full time to the tune of five years as above, will he or she be considered for an immigrant visa or any such change in immigration status. This excludes time in J-1 status.

Regulations by the USCIS categorically state that the practitioner must serve full time in a Health or Mental Health Professional Shortage Area, or even at a Veteran’s Health institution. Further, as per the 1999 law, eligible medical practitioners must practice in areas of family medicine, psychiatry, obstetrics, pediatrics or general internal medicine.

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