NIW

National Interest Waiver

What types of services related to NIW does Liu & Xu, P.C. provide?

In NIW petition, the key point is to prove the national benefit that the applicant will bring to the US in his/her field. The importance of strong recommendation letters and well drafted petition letter to support such claim can not be over emphasized. Therefore, if you are prepared with the help of an experienced attorney in your NIW petition, your chances for success are greater. Liu & Xu, P.C. proudly offers the following quality services related to NIW:

Liu & Xu, P.C. experienced attorney(s) will first evaluate your situation as to the options of your potential immigration petition. You may send us your resume. After reviewing your resume, we will give an initial advise on whether the NIW is applicable to your situation or you may opt for other channels such as EB-1(a), EB-1(b) or Labor Certification for your immigration petition.

After you retain us for your NIW case, we will
1)provide sample recommendation letters applicable to your field, which can be used as a reference for you;
2)review and edit your Letters of Recommendation to tailor them to your specific situation;
3)guide you to collect all the documents and information needed for your NIW petition;
4)organize all the required documentation for your NIW petition, including the signed recommendation letters;
5)draft the petition letter on your behalf;
6)submit the completed petition materials to the proper INS Center via registered mail; and
7)contact the INS for the status inquiry of your pending case.

If the INS makes a request for additional evidence on your pending case, we will respond and submit the additional documentation required for your case to the INS in time. As soon as the INS makes a final decision on your NIW application, we will inform you of the result.

For more information on National Interest Wavier, please click one of the following topics:
Description

Immigration Library: National Interest Waiver (NIW)

A National Interest Waiver (NIW) petition falls into the employment-based immigration second preference category. Normally, to file an employment-based second preference petition, Labor Certification approval is generally a pre-requisite. However, a National Interest Waiver (NIW) petition requests that the otherwise required U.S. job offer requirement be waived for the sake of "national interest."

In order to file an NIW petition, the candidate must be able to demonstrate that he is seeking work in an area of substantial intrinsic merit to the US, that the benefit from the candidate’s proposed activity will be national in scope, and that such national interest would be adversely affected if a Labor Certification were required for the alien applicant.

Since Labor Certification requirement is waived in an NIW petition, the underlying permanent job offer is waived too. Therefore, an individual without an employer may file an NIW on behalf of him/herself, while a U.S. employer may file an NIW on behalf of the alien too.

Requirements

How do you qualify for an NIW?

In order to qualify for an NIW, the candidate must demonstrate the following:

He/she seeks work in an area of substantial intrinsic merit; and
The candidate's proposed work will benefit the nation as a whole; and
National interest would be adversely affected if the Labor Certification process was required for the alien.

Ultimately, an alien who seeks an exemption under an NIW from the job offer requirement must be able to demonstrate that the benefit his or her activity would provide to the nation is so great as to outweigh the nation's interest inherent in completion of the Labor Certification process.

Process

What is the application process for an NIW?

An NIW application consists of the petition, along with supporting documentation that the beneficiary is an "Advanced Degree Professional" or an "Alien of Exceptional Ability", including Letters of Recommendation.

Liu & Xu, P.C. can provide sample recommendation letters tailored to your specific field, which can be used as a reference by your colleagues. We will review and edit your Letters of Recommendations to maximize your chances of approval. We will draft the petition letter on your behalf and gather all the required documentation for your NIW application, including your signed recommendation letters. The completed application will be submitted to the proper Immigration and Naturalization Service (INS) Center via registered mail.

The INS will issue an official receipt notice acknowledging receipt of the application once it is received. We will provide you with a copy of this receipt as soon as it is received. The INS may make a request for additional evidence if it feels that there is insufficient evidence to decide your application. Our firm will submit the additional documentation required for your case. When the INS makes a final decision on your NIW application, we will inform you of the result.

An NIW application generally takes anywhere from 3-9 months from the time it is filed with INS, depending on the particular INS Service Center that has jurisdiction.

Documents

What documents are necessary to prepare an NIW?

The following documents are necessary to prepare an NIW petition:

Copy of your passport;
Copy of your I-94 (both sides);
Evidence of your current nonimmigrant visa status (i.e., I-20's);
Degree certificates and, if applicable, records showing that your educational background is comparable to at least a Master's Degree awarded in the United States;
All publications, publication citations, abstracts, & invitations to conferences, if any;
Comments on your published works by critics/journal referrees, if any;
Requests for reprints of your publications, if any;
Evidence of awards or honors received, if any;
Evidence of membership in professional associations, if any;
Details of the funding for your research projects or grants, if any;
Newspaper articles describing the professional reputation of persons preparing your references, if any;
Your resume;
List of persons providing you with recommendation letters, including their names, titles and employers; and
Recommendation letters*.

*Letters of Recommendation: The candidate must provide Letters of Recommendation or letters of support from experts within the candidate's field of specialization such as professors, researchers, etc..

These Letters of Recommendation should demonstrate that:

The alien seeks employment in an area of substantial intrinsic merit;
The candidate possesses unique knowledge, abilities, or experience which sets them apart from their professional peers;
The candidate will utilize his/her unique talents in an activity significantly benefiting the field of specialization;
The proposed benefit will be national in scope; and
National interest would be adversely affected if a Labor Certification were required for the candidate.

Preparation and drafting of such letters can be a complex process. Candidates should seek the assistance of an experienced immigration attorney who can help you prepare the recommendation letters.

Liu & Xu, P.C. is experienced in handling NIW petitions. We also provide a free initial evaluation for potential NIW candidates.

Factors

What factors may be considered in determining whether an alien meets the 'national interest' standard?

To determine whether admitting an alien would be 'in the national interest', several factors may be considered including:

Whether the American economy will benefit from the alien's admission;
Whether the alien will help improve health care;
Whether a U.S. government agency has specifically requested that the alien be admitted;
Whether the alien's admission will improve training and educational programs benefiting U.S. under-qualified workers and children;
Whether the alien's admission will help create more affordable housing solutions for the poor, elderly, and children;
Whether the alien's admission will improve the environment and lead to better usage of natural resources;
Whether the alien's admission will improve the working conditions and wages of U.S. workers.

Typically, aliens who are successful in securing an NIW present cases that establish themselves as having some unique skill, experience, or knowledge, that sets them apart from their professional peers. Documents stating that he/she possesses a certain level of competence will not be sufficient to receive a National Interest Waiver.

It must be clearly demonstrated that the NIW candidate's past record substantiates projections of future benefits to the U.S. national interest. Thus, while the NIW candidate may have made significant contributions already, the NIW candidate needs to show that there is still more important work to be done.

Recommendation Letters testifying to the alien's unique skill, experience, knowledge, or expertise will be examined by the INS and the credentials of the individuals who write such letters on your behalf will be reviewed to determine whether they are qualified to make such evaluations.

Additionally, the NIW candidate should be aware that the government has become increasingly strict in its interpretation of what it considers to be in the national interest. Applications that would have been approved four or five years ago are now currently being denied.

The NIW process is complex and, at times, convoluted. We recommend that you seek the assistance of an experienced immigration attorney.

Frequently Asked Questions about NIW

Frequently Asked Questions about NIW

Q: What is a National Interest Waiver (NIW)?
A: A National Interest Waiver (NIW) petition requests that the otherwise required U.S. job offer requirement be waived for the sake of "national interest."

Q: What are the minimum requirements to apply for an NIW?
A: Since this is an employment based second preference petition, the beneficiary of an NIW must qualify as either an "Advanced Degree Professional" or an "Alien of Exceptional Ability."

Q: What is an Advanced Degree Professional?
A: The term "Advanced Degree Professional" means that the beneficiary either has an advanced degree (M.A., M.S., M.E., M.D. or Ph.D.) or its equivalent. A Bachelor degree plus five years' experience in a professional or progressive occupation may also satisfy the qualification requirement of an "advanced degree".

Q: What is an Alien of Exceptional Ability?
A: The term "Alien of Exceptional Ability," according to INS regulations states: "to show an alien is of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three (3) of the following:

An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
A license to practice the profession or certification for a particular profession or occupation;
Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
Evidence of membership in professional associations; or
Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Q: To apply for an NIW, do I have to be both an Advanced Degree Professional and Alien of Exceptional Ability?
A: No, the alien only needs to satisfy either the "Advanced Degree Professional" or "Exceptional Ability" requirement. Proof of both is unnecessary. Please note that this fulfills the minimum requirements, which allows the NIW case to be considered. It does not guarantee a successful NIW case.

Q: What documents are required for NIW petitions?
A: Documents for an NIW petition consist of the Immigration and Naturalization form I-140 and the Department of Labor form ETA-750B. Additionally, documents supporting that the beneficiary is an "Advanced Degree Professional" or an "Exceptional Ability Alien" should be provided. There are no other required specific documents according to INS laws and regulations. Once again, satisfying the minimum documentary requirements only allows the candidate's petition to be reviewed and does not guarantee a successful case.

Q: What is the NIW standard under current U.S. immigration statutes?
A: The 1990 law provides that "Advanced Degree Professionals", or persons of "Exceptional Ability", whose work would substantially benefit the national interests of the U.S. would be exempted from the labor certification requirement, if this would be in the "national interest" of the U.S. What constitutes 'national interest', however, is not defined under the Statute.

Relevant statute Sec. 203. [8 U.S.C. 1153] states:

'The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.'

Q: How does INS determine its decisions regarding NIW cases?
A: Before August 1998, the INS took a liberal stance in deciding NIW cases. However, the decision in re New York State Department of Transportation on August 7, 1998 by the Administrative Appeal Unit of the INS tightened the standard applied to NIW cases.

The following three factors are considered in determining whether an alien will substantially benefit the national interests of the United States:

It must be shown that the alien seeks employment in an area of substantial intrinsic merit.
It must be shown that the proposed benefit will be national in scope. It means that the alien's perspective contribution will bring benefits not to a limited region in the U.S., but rather provide benefits that impact on a national scale.
The petitioner seeking the waiver must satisfactorily demonstrate that the national interest would be adversely affected if a labor certification were required for the alien. It must be shown by the petitioner that it would be contrary to national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.

The Labor Certification process exists to protect the jobs and job opportunities of U.S. workers having the same minimum qualifications as an alien seeking employment in the national interest. The petitioner, whether the U.S. employer or the alien, must 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.

Q: How does one establish prospective national benefit?
A: While the national interest waiver hinges on prospective national benefits, the alien's past record should justify and clearly establish likelihood of projected national future benefits.

Q: Is there something that distinguishes a successful NIW from an unsuccessful NIW?
A: No, there is nothing specific that guarantees a successful NIW petition. The petitioner has the burden of proof to provide sufficient evidence to show that the work to be done by the alien will benefit the United States' national interest.

Q: How important are useful skills or a unique background?
A: It is not sufficient to state that the alien possesses useful skills or a unique background. Regardless of the alien's unique experience or skills, the benefit the alien's skills or background will provide to the United States must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.

Q: Who has the burden of proof in showing national interest?
A: The burden of proof in NIW cases rests solely on the petitioner and his attorney.

Q: Can a Ph.D. student apply for a NIW petition?
A: Yes. Since a job offer is not required, a Ph.D. student may qualify for an NIW petition.

Example:
Jane has an M.S. degree in biology but does not have a Ph.D. Can she apply for an NIW petition? Yes, an M.S. in biology meets the minimum requirements of an "Advanced Degree Professional".

Example:
John does not have a U.S. degree, but has an advanced degree awarded from China, his home country. Is a foreign advanced degree considered for NIW petitions? Yes, a foreign advanced degree meets the NIW's advanced degree minimum requirements.

Q: How many publications are required to meet minimum NIW requirements?
A: There is no minimum publication requirement. INS decides each petition on a case-by-case basis.

Q: Would evidence of a labor shortage in the NIW beneficiary's profession be a factor?
A: No. The New York Transportation Case explicitly excludes labor shortages from being considered as a factor in waiving the labor certification process.

Q: Besides NIW's, what other venues exist to apply for an employment-based immigration petition without the necessity of a labor certification?
A: If you qualify for an employment-based first preference petition, you do not need a labor certification. Within the first preference category, if you qualify as an "Alien of Extraordinary Abilities", you also do not need a job offer. For more information on EB-1s, please click here.

Q: Do I need to live within the U.S. to obtain an NIW?
A: No, an alien may reside either within the U.S. or in a foreign country and apply for an NIW. However, your NIW claim will be more difficult to establish if you are living outside the U.S.

Q: What is a Letter of Recommendation?
A: A Letter of Recommendation is a letter written by an expert in the alien's field or some otherwise authoritative person in an allied or supported field. The letter discusses the abilities and accomplishments of the alien seeking an NIW as well as the importance of the alien's work to the national interest. Letters of Recommendation are an important part of an NIW petition.

Q: Whom should I contact to obtain Letters of Recommendation?
A: Letters of recommendation can be obtained from various sources. Generally, one would need to obtain recommendations from experts within your respective field stating that you have made a significant contribution to your field and have achieved a degree of recognition.

Other examples may include top-level management of prospective companies making use of the alien's work, and current and former employers. It is recommended that you include letters from those who have not worked personally with you but are still aware of your achievements since such letters are generally given more weight than those obtained from people who know you well.

Q: How many Letters of Recommendation is necessary for a successful NIW petition?
A: There is no required minimum number of Letters of Recommendation set forth by INS. Generally, we include five to six Letters of Recommendation in our NIW applications.

Q: How strong must the Letters of Recommendation be?
A: The Letters of Recommendation must support your NIW claim. It should cover the following points: 1) your work has intrinsic merit to the National Interests of the U.S.; 2) your contribution is national in scope; and 3) requiring a labor certification will have an adverse effect on the National Interest of the US.

Q: Does your firm provide sample Letters of Recommendation?
A: Yes, we provide our clients with a relevant sample recommendation letter to use as a reference from our sample database which includes letters from a wide range of areas, including biochemistry, cancer research, chemistry, physics, arts, medical research, petroleum, music, and pharmacy.

Q: If my boss is not willing to write a strong letter of recommendation for me, may I still obtain approval of an NIW petition?
A: It is not necessary to obtain a strong letter of recommendation from your current employer to have a successful NIW petition. If you obtain Letters of Recommendation from other experts to support an NIW claim, your case may be a successful one.

Q: Does an artist or musician qualify for an NIW?
A: Yes. Artists and musicians may apply for an NIW.

Q: If I do not have any published articles in journals within my field, may I still apply for an NIW?
A: Yes. There is no specific requirement that you need to have published in order to apply or obtain approval of an NIW petition.

Example:
Susan has not received any awards for her work or studies. She may still apply for an NIW since there is no specific requirement that you need to have received any awards.

Example:
Lee is not a member of any academic, scientific, or professional association or society in his field. He may still apply for an NIW since there is no specific requirement that you have to be a member of any association or society.

Q: I am not a member of any professional organizations in my field, but may join by paying a membership fee. Should I join the professional associations now in order to increase my chances of approval for an NIW?
A: Not necessarily. If the professional association is relatively easy to join, it may not be a factor in your NIW case.

Q: I am considering applying under an EB-1 classification. May I also apply for an NIW?
A: Yes. You are not bound by only one immigrant petition (Form I-140). You may petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether the INS will approve any given case.

Q: If I have already applied under another classification, is there any reason for me to try for an NIW?
A: Yes. You may want to apply for an NIW to improve your chances of getting a petition approved. It is impossible to predict whether the INS will approve any given case. If the other case is eventually denied, you may still get the NIW petition approved. Also, some types of petitions require an employer sponsor and anyone approved under such a petition would be required to work for that employer for at least some time after the immigrant petition is approved. An NIW requires no employer sponsor, so an alien approved under an NIW will not be bound to any particular employer.

Q: If I apply for an EB-1 and an NIW at the same time, is there any negative effect between the two petitions?
A: No, they are unrelated. One will not affect the other.

Q: Between an NIW and an EB-1, which petition is recommended?
A: It depends. You need to evaluate the criteria for an NIW and EB-1 against your specific situation.

Q: If I have a Labor Certification pending, may I also apply for an NIW?
A: Yes. A Labor Certification process is done by the U.S. Department of Labor whereas the INS handles NIW petitions. If your Labor Certification is ultimately denied, then you still have a chance of getting an NIW approved. Either way, you need to petition for an adjustment of status. Moreover, with a Labor Certification, you must petition under the employer who sought the Labor Certification and would be required to work for that employer at least some time after your immigrant petition (Form I-140) is approved. With an NIW you are not bound to remain with any particular employer.

Q: If I have been denied a Labor Certification, may I still petition for an NIW?
A: Yes, assuming you otherwise would qualify for an NIW. The standards for NIWs and Labor Certifications are very different. A Labor Certification is based on a lack of available U.S. workers with minimum qualifications for the particular job. By contrast, an NIW is based on the alien being able to contribute to a greater degree than U.S. workers with minimum qualifications. For example, there could be a multitude of U.S. workers with minimum qualifications available for a particular job, but the alien worker is much better at this particular job than those with minimum qualifications. Under such a circumstance, a Labor Certification would likely be denied, while an NIW would be more likely to be approved.

Q: What is a "Request for Additional Evidence"?
A: Sometimes the INS is not convinced that the alien seeking an NIW has met the burden to prove that he/she qualifies for an NIW. In such cases they will typically submit a "Request for Additional Evidence" seeking certain forms of evidence that the INS finds lacking. Liu & Xu, P.C. takes great pains to present a strong case so that it may be approved without a request for additional evidence. Nevertheless, there is no way to predict how a particular INS officer reviewing a particular case will respond and sometimes even the strongest of cases receive a "request for additional evidence". Even in such situations, our cases are usually approved after we prepare and submit the additional evidence.

Q: You have reviewed my resume and know my background. What is my chance of obtaining an NIW approval?
A: It depends. Your chance of success for an NIW approval is not determined solely by your resume and background. Letters of Recommendation from various sources play an important role in supporting an NIW claim. Your chance of success cannot be measured without analyzing all the components of an NIW petition.

Q: Can Letters of Recommendation included in an EB-1 petition be used for an NIW petition?
A: No. EB-1 Letters of Recommendation will not be effective for an NIW petition since an EB-1 and NIW have different criteria.

Q: If I have filed an NIW, when is my priority date?
A: Your priority date is the date that the INS receives your NIW petition.

Q: I am in J-1 status and subject to the two-year home country residency requirement. May I apply for an NIW?
A: Yes. However, you need to obtain either a J-1 waiver or satisfy its requirements before you may adjust your status to permanent resident.

Q: I am currently in J-1 status and subject to the two-year home country residency requirement. If I apply for a National Interest Waiver and get it approved, is my J-1 home country requirement waived?
A: No; a J-1 waiver and National Interest Waiver are two different things. A J-1 waiver is an application to waive the two-year home country residency requirement. A National Interest Waiver is an immigration petition and waiver of the Labor Certification requirement. Even if your NIW is approved, you are still subject to the two-year requirement. You need to obtain either a J-1 waiver or satisfy its requirements before you may adjust your status to permanent resident.

Q: If my NIW is approved, may I adjust my status to permanent resident?
A: It depends on whether an immigrant visa is available for you.

Q: How many NIW cases has your firm handled?
A: Our firm has successfully helped many clients obtain NIW approvals. We have extensive experience representing clients in NIW cases.

Q: Can your firm guarantee that my case will be successful?
A: No, we cannot promise that your case will result in a successful outcome. However, we can promise you that we will take your case as our own, give it the highest priority, and produce first-rate work product.

Q: After my NIW is approved, do I need to remain with my current employer?
A: No, provided you are the petitioner in the NIW petition.

Q: After my NIW is approved, am I required to remain in the same field as my NIW claim?
A: Yes, you are required to continue to work in the field of your NIW claim and benefit the national interest of the U.S. If you venture into another area, the INS may deny your Adjustment of Status (I-485).

Q: If I retain Liu & Xu, P.C., what do I need to do?
A: If you decide to retain us to do your NIW, please read a copy of our NIW contract, sign it, and mail it to us, along with a check for $7,000, which consists of the attorney's fee. Once we receive the signed completed contract and check, we will begin work on your case.

Q: If I retain Liu & Xu, P.C. , how soon can you file my NIW?
A: It depends on how long it takes to gather all the supporting evidence, including Letters of Recommendations. After you have provided all the accompanying supporting documentation, it usually takes us about one week to complete the petition and prepare it for filing.

Q: How long does it take for the INS to process NIW cases?
A: Generally, it takes the INS between six months to one year to process an NIW case.

Q: I know your firm is located in Chicago, Illinois. I live in another state. Can your firm handle my case?
A: Yes. Liu & Xu, P.C. is headquartered in Chicago, Illinois, but we handle US immigration cases anywhere within and outside the US by using the latest technology in providing professional services to our clients since immigration is based on federal law.

Q: If I retain your firm, do I need to meet in-person with one of the attorneys at Liu & Xu, P.C.?
A: No, it is not necessary to meet in person for us to handle your case. You may communicate with us via fax, telephone, mail, e-mail, and express mail.