National Interest Waivers (NIW)

The current rule for NIW requirements comes from Matter of New York State Department of Transportation, Int. Dec. # 3363 (Acting Assoc. Comm. 1998) [“NYSDOT”]. In that case, the requirements for the waiver include: (1) the person seeks employment in an area of substantial intrinsic merit; (2) the benefit will be national in scope; and (3) the national interest would be adversely affected if a labor certification were required.

Even though it is arguably beyond the scope of the law, the USCIS position seems to proclaim that having exceptional ability is not, by itself, sufficient to grant the waiver. The USCIS position also holds that a national interest waiver is not warranted solely to ameliorate a local labor shortage. NIW petitioners must prove that their unique skills would provide benefits substantially outweighing the inherent national interest in protecting U.S. workers under the labor certification program.

In addition, the NIW petitioner needs to prove that they would prospectively serve the national interest “to a substantially greater degree than would an available worker having the same minimal qualifications.” Further, the NIW petitioner must clearly present a significant benefit to the field of endeavor and establish their record of accomplishment exerted “some degree of influence on the field as a whole.”

In the past the immigration service has looked to the following factors in determining whether a case involves something that would qualify as in the National Interest: (1) improving the U.S. economy; (2) improving wages and working conditions for U.S. workers; (3) improving education and programs for U.S. children and under qualified workers; (4) improving health care; (5) providing more affordable housing; (6) improving the U.S. environment and making more productive use of natural resources; and (7) interested government agency request.

The NIW is not for everyone, yet it can serve as a fine alternative to obtaining a labor certification.