The National Interest Waiver – Within the Reach of Many

The National Interest Waiver application is a self-sponsored application that is a good fit for many, many researchers and others looking to get permanent residence inth
the US. While many people feel that they need to show they are working for our government or something similar in order to show that their work i
s in the National Interest, this is actually not the case. The National Interest Waiver, while not easy to get approved, is much less restrictive than the E
xtraordinary Ability application and many people may be surprised that once they review the standard, that they can in fact qualify for this green card category.

So what are the actual qualifications for this application and how do you show your work is in the national interest? Unfortunately, this is a case in which both Congress and USCIS did not issue any guidance as to what the standard should be, so it was left to the courts. Specifically, the Administrative Appeals Office (AAO), in a precedent case (Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998)(NYSDOT)) did explain what is needed to show that your work is in the national interest. After the AAO issued this decision, USCIS formally adopted the decision as their standard.

The NYSDOT case laid out a three part test to determine if your work is in the national interest: 1) you must be seeking work in an area that has substantial intrinsic merit; 2) you must demonstrate that the proposed benefit to be provided by your work will be national in scope; and, 3) you must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making your position available to US Workers.
While the above can seem daunting in theory, it is not quite so daunting in practice. What it comes down to is showing you are, and will be, working in an important area and that you have already made a significant impact on your field. What type of documentation can show this?

If you are a scientist you can show this through publishing and presenting your work, citation history, peer reviewing, being accepted for oral presentation or invited to talk, having a paper highlighted at a journal website or elsewhere, having press about your findings. Please note, the above is a list of documents that CAN be used to show eligibility, and it is not a list of ALL documents that are needed, as you can be approved with less than all the above documents.
In general, while this is similar to the same type of documentation that is used for the Extraordinary Ability application, a key difference is that the NIW is a less restrictive standard than the EA. For instance, the Administrative Appeals Office, in looking at EA cases has indicated that perhaps 200 or more citations would be considered “a good number”. For the NIW application much less citations are needed. Many cases we have seen there are only 40-70 citations overall. Instead of having to show you are one of the few at the top of your field, the extent of your impact and influence on your area is key. This also me
ans that you do not need to be the first named author on your papers as it is the impact, not your renown, that is the key for the NIW.

For areas other than the sciences, such as foreign relations, health policy, etc, while the type of documentation can be much the same as above – publications, press, etc, you also have the opportunity to look at your role within projects, programs, or other initiatives. It can also be much more letter focused with letters from government officials or NGOs about the use and implementation of your work, etc. It all depends on whether your work is more academic related or applied in the field.

In essence, US interests are broad in nature, and thus, depending upon the extent of your standing within a specific area, you may very well be a good candidate for this type of visa application.

Please remember, always get your legal advice from an attorney and not a blog. Call and talk to an attorney to get the specifics of this status and your ability to qualify.

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