Green Cards (Common)
National Interest Waivers
Professors & Researchers
Executives & Managers
PERM Labor Certification
Investors (EB-5 visas)
Family (Spouse, etc.)
Work Visas (Common)
O-1 Extraordinary Ability
TN Canadians & Mexicans
J-1 Visa Holders
Nurses & Physical Therapists
FAQs about National Interest Waivers (NIW)
You may qualify for a National Interest Waiver if you can answer "Yes" to the following questions Is your field within the areas of sciences, arts or business? Can you present evidence of at least 3 of the following?
Do I possess unique knowledge, abilities or
experience that set me apart from my peers?
What are my options if I do not quite meet the requirements for the Aliens of Extraordinary Ability category?
If you do not meet these minimum requirements, you may be eligible for a National Interest Waiver. National Interest Waivers offer many advantages to the traditional labor certification process. Even if you do not meet the high standards of the EB-1 category, you may be able to show that your accomplishments are "exceptional" for your National Interest Waiver petition.
A master's degree (or alternatively "exceptional ability") and doing research that is in the "national interest" is generally not enough by itself to qualify for a national interest waiver. Those are only the minimum requirements for being able to file a petition in this category.
There used to be a lot of concern about this issue in the past. The reason is that students (unlike certain other visa holders, such as H, L, and O) are not supposed to have "immigrant intent." That is, if you are still a student, you are supposed to be intending to finish your studies and return to your home country - not intending to remain in the United States permanently. The CIS has not objected to Ph.D. students filing national interest waiver cases, however, and we have obtained numerous national interest waivers for Ph.D. students over the years. You should still discuss this issue with your attorney at the start of your case if you're concerned about it.
Unlike F-1 student status, H-1 status expressly allows for "dual intent," which means that you can intend to remain here temporarily and permanently at the same time. That is, you intend to remain here temporarily unless your green card application is approved and you are allowed to remain here permanently.
Does the CIS still approve national interest waiver cases after New York State Department of Transportation (NYSDOT)?
Yes. As in the days before NYSDOT, however, you still have to demonstrate that you are accomplished enough in your field. The threshold for being "approvable" is (in our experience, anyway) about the same as it has always been, although the results are somewhat less predictable, and some Service Centers have effectively begun to require evidence that simply is not required in the statute or regulations (or by the AAO decisions regarding national interest waiver appeals). Essentially, the effect of NYSDOT is that once you reach the level necessary where you case should be approved, your case may still be one of the certain percentage of the cases that is arbitrarily denied and requires an appeal to AAO to be approved. We have written articles explaining how NYSDOT is interpreted and misinterpreted and strategies for achieving approval of national interest waivers after NYSDOT.
This just means that the benefits of your research or other work extends beyond simply the location where you are working. As far as we can tell, that criterion was put into the decision primarily to prevent medical doctors working in medically underserved areas from applying for national interest waivers. (After NYSDOT, Congress passed a special national interest waiver provision just for these doctors anyway, which overrides this part of the NYSDOT decision.) It is also used to deny cases of many cases, such as teachers, cooks, and others whom the CIS believes are doing work that (although it is important) is "purely local." As noted in one of our published articles on national interest waivers, it is generally quite easy to meet this "national in scope" test and is not something we generally worry about. It is, however, a common source of confusion at the CIS, which frequently misinterprets it to mean "national impact," which is something completely different.
What it means on paper is that there has to be something inherently beneficial about the work you are doing in the United States. If you are conducting cancer research, "substantial intrinsic merit" is quite obvious. In fact, if you are doing any kind of research, it will generally be deemed to be of "substantial intrinsic merit." In our opinion, this factor was put into the NYSDOT decision only to reflect Congress's obvious intent that you must be doing something useful before your national interest waiver case can be approved.
In our experience, even before the NYSDOT decision was published, CIS adjudicators have generally used an implicit "sliding scale" - although they do not specifically say so. That is, the less important your research seems, the better you will have to be before they will approve your case. For example, biomedical researchers generally don't have to be as good as researchers in, say, wireless communications researchers.
Yes, you can concurrently file your I-140 and I-485, but you must understand and take into account the risks. The main risk is that your I-140 may be denied, in which case your I-485 (and I-131 and I-765) will be denied. Of course, offsetting that risk is that you can get your advance parole (I-131) and work authorization (I-765) approved sooner, and your I-485 may be approved sooner, too, which is what you really want. Definitely discuss this issue with your attorney to make sure you understand it before you just say "yes" to concurrent filing. You can be really sorry if you don't and your I-140 is denied.
Yes. The question is not whether there is risk, but whether the risk is worth it. The issue of concurrent filing is am important one. What to do in your particular case really depends on many different factors, including, for example, the overall strength of your case, whether you need work authorization or travel documents for yourself or your spouse or children, how you feel about risk in general, and so on. Whether to do concurrent filing with your particular case is an important topic to discuss with your immigration attorney.
I filed my own national interest waiver petition, but it was denied. Is it possible to file a new petition?
Yes. Please contact us and we can assist you in preparing your new national interest waiver petition.
I filed my own national interest waiver petition, but it was denied. What is the likelihood that my new petition will be approved?
This is a good question. On one hand, the CIS Service Center will be reviewing your case with full knowledge that your prior case has already been denied. (The examiner will know about the prior denial because you have to disclose it on the form you submit with the new petition.) On the other hand, there may be different circumstances, better evidence, better preparation, etc. that could make your new petition more likely to be approved this time even though it was denied last time. It depends on the facts and circumstances of your particular case and whether the second CIS examiner believes you qualify now even though a different examiner felt you did not qualify before.