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What Does the New National Interest Waiver Guidance Say?

What is the New National Interest Waiver Guidance Issued by the USCIS?

The United States Citizenship and Immigration Services (USCIS), which operates under the Department of Homeland Security, has issued new updated guidance pertaining to the adjudication of requests for National Interest Waivers (NIW) by individuals with advanced degrees in science, technology, engineering, or math (STEM) fields and entrepreneurs. 

The new guidance offers instruction and direction to EB2 immigrant visa applicants in a STEM field who wish to utilize the NIW.

What is the National Interest Waiver? 

Under the NIW, foreign nationals can seek permanent employment in the United States through a “self-petition,” without a job offer from an employer. Instead of having an employer lead the application process, a National Interest Waiver applicant must establish certain requirements in order to be granted a waiver, which allows them to forgo the job offer requirement as well as the requirement that they receive a Permanent Labor Certification from the U.S. Department of Labor. 

Who Can Utilize the National Interest Waiver? 

The NIW is only available to second preference employment-based immigrant (EB2) visa applicants who meet the criteria required of the NIW. 

In order to qualify for the NIW under the EB2 visa, an applicant must be able to prove that they qualify as either a member of a qualifying profession holding an advanced degree or that they have exceptional ability, and that the waiver of the job offer requirement and labor certification requirement is in the “national interest.”

Individuals who qualify for the EB2 visa do not automatically qualify for the NIW. Thus, proving qualification for the EB2 visa and the NIW involve separate criteria. 

What Does it Mean to be in the “National Interest” for the National Interest Waiver? 

Applicants seeking a NIW bear the burden of proving that waiver of the job offer and labor certification requirements is in the national interest. 

To prove that a waiver is in the national interest, applicants must prove by a preponderance of evidence that: 

  1. The applicant’s proposed endeavor has both substantial merit and national importance; 
  2. The applicant is well positioned to advance the proposed endeavor; and 
  3. It would be, on balance, beneficial to the United States to waive the job offer and permanent labor certification requirements. 

What Does the New National Interest Waiver Guidance Say?

The new guidance addresses unique considerations for individuals with advanced STEM degrees who wish to utilize the NIW in order to forgo the job offer and labor certification requirements. 

The USCIS’ new guidance provides STEM applicants seeking a NIW a framework for how the USCIS will adjudicate and evaluate evidence of STEM applicants, including those in new multidisciplinary or emerging fields. This includes how the USCIS will evaluate Substantial Merit and National Importance; the applicant’s ability to Advance the Proposed Endeavor; and the Benefit to the United States in waiving the job offer and labor certification requirements.

The update also provides useful guidance to STEM NIW applicants about the significance role letters from governmental and quasi-governmental entities can have in determining STEM NIW eligibility. 

Evaluating Applicants in Multidisciplinary or Emerging STEM Fields

The USCIS says it recognizes the importance that multidisciplinary or emerging STEM fields can have for the United States. Thus, USCIS wants to ensure the NIW is available for applicants in such fields who qualify.

The USCIS’ guidance provides insight into how it will identify multidisciplinary or emerging STEM fields that will be critical, or beneficial, to the United States.

The USCIS says it will consider governmental, academic, and other authoritative or instructive sources as evidence submitted by the applicant of critical and emerging technology fields. The USCIS says the Critical and Emerging Technologies List Update issued by the National Science and Technology Council under the Executive Office of the President is an example of an authoritative list the USCIS will use to determine whether an applicant’s work constitutes as critical and emerging. 

According to the USCIS, evidence can demonstrate a STEM field is important to American competitiveness or security in a variety of circumstances. For example, evidence submitted by an applicant that demonstrates that his or her endeavor will help the U.S. remain ahead of strategic competitors or adversaries, or relates to research and development-intensive industries that contribute to U.S. technology leadership will likely be viewed favorably by the USCIS. 

Evaluating Substantial Merit and National Importance for STEM Workers

Under the first requirement for the NIW, the USCIS essentially instructs that a proposed STEM endeavor must have substantial merit and national importance like all NIW endeavors. However, the USCIS seems to caution applicants that substantial merit does not equal national importance, 

Endeavors that seek to advance STEM technologies and research, either in academic or industry settings, must not only have substantial merit to U.S. technology and science interest, but the potential implications of the endeavor must also demonstrate national importance. Just because a STEM academic endeavor, for example, involves substantial merit to U.S. educational interests, does not mean its impact to U.S. STEM education or research broadly meets the standard of national importance. 

Evaluating the STEM Applicant’s Ability to Advance the Proposed Endeavor

The USCIS says the applicant’s education and skill set are relevant to his or her ability to advance their proposed endeavor. Accordingly, the USCIS will consider advanced degrees, particularly a Doctor of Philosophy (Ph.D.) in a STEM field as an especially positive factor of evidence of the applicant’s ability if: 

  • It is in a STEM field tied to the proposed endeavor; and
  • It is related to work that furthers a critical and emerging technology or other STEM area important to U.S. competitiveness or national security.

The USCIS won’t only evaluate whether the applicant has a Ph.D. or other advanced degree in a STEM field, but whether or not the specific and narrow focus of the applicant’s degree relates to the applicant’s proposed endeavor. Even theoretical STEM areas may further competitiveness or national security under the proposed endeavor, according to the USCIS. 

Finally, the USCIS does not consider a degree on its own as a basis to determine whether an applicant is well positioned to advance their proposed endeavor. Instead, applicants should also submit evidence similar to what any NIW applicant would submit, such as: 

  • Patents, trademarks, or copyrights developed by the person;
  • Letters from experts in the applicant’s field, describing his or her past achievements and providing specific examples of how he or she is well positioned to advance the endeavor;
  • Published articles or media reports about the applicant’s achievements or current work;
  • Documentation demonstrating a strong citation history of the applicant’s work or excerpts of published articles showing positive discourse around, or adoption of, the applicant’s work;
  • Evidence that the applicant’s work has influenced the field of endeavor;
  • A plan describing how the applicant intends to continue the proposed work in the United States;
  • A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;
  • Correspondence from prospective or potential employers, clients, or customers;
  • Documentation reflecting feasible plans for financial support;
  • Evidence that the applicant has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;
  • Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;
  • Letters from government agencies or quasi-governmental entities in the United States demonstrating that the applicant is well positioned to advance the proposed endeavor;
  • Evidence that the applicant has received awards or grants or other indications of relevant non-monetary support from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and
  • Evidence demonstrating how the applicant’s work is being used by others.

Evaluating the Benefit to the U.S. in Waiving the Job Offer and Labor Certification Requirements

The USCIS says that applicants are required to prove that all factors in favor of waiving the job offer and labor certification requirements ultimately outweigh all factors that support the requirement of a job offer and labor certification. 

According to the USCIS, it will consider a combination of facts to be in favor of waiving the job offer and labor certification requirements, including that: 

  • The applicant holds an advanced STEM degree, particularly a Ph.D.; 
  • The applicant will be working to further a critical and emerging technology or other STEm area important to U.S. competitiveness; and
  • The applicant is well positioned to advance the proposed STEM endeavor of national importance. 

The USCIS adds that a benefit is especially helpful to the applicant if their endeavor has the potential to support U.S. national security or economic competitiveness. Additionally, applicants who can demonstrate support from interested U.S. government agencies will receive favorable consideration. 

Evaluating Letters from Governmental and Quasi-Governmental Entities

The USCIS advises that letters from interested government agencies or quasi-governmental entities in the United States can be helpful to any of the NIW requirements, depending on what the letters might say. 

Such letters are not required, but if submitted would act as a form of authoritative evidence that speaks to any one of the NIW requirements and may be particularly useful for STEM applicants who are proposing an endeavor in an emerging technology or science.

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

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