In the world of employment-based immigration options, once the H-1B cap has been met, every year employers and employees tend to seek alternatives to the H-1B for qualified employees to obtain their visa.

One permanent option is to file an I-140 visa petition and request a “national interest waiver” of the labor certification requirement, sometimes referred to as “NIW.”

An NIW petition is a second preference I-140 visa petition.  In a normal case, second preference petitions require approval first from the Department of Labor (“DOL”) before filing the I-140 petition.  In an NIW case, if the petitioner can demonstrate that the alien beneficiary is an “exceptional ability alien” and, in addition, can show that a waiver of the labor certification requirement is in the “national interest,” then labor certification is not required   The national interest can be shown by proving that the person’s presence in the United States has a significant benefit to the economy, the health, the safety, etc. of the U.S.

People seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States.  Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the nation.  Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

In recent years, the USCIS has become more rigid in granting visa petitions under the NIW category.  One critical distinction often missed by applicants is that the primary focus in NIW cases is NOT on the “national interest” of the field of employment.  Instead, the USCIS looks to “determine whether the PETITIONER (the foreign researcher or worker) will benefit the national interest to a greater extent than an available U.S. worker with the same minimum qualifications.”  In a recent unpublished opinion, the AAO explained that it “generally [does] not accept the argument that a given project is so important that any alien qualified to work on this project must also qualify for a national interest waiver.”

Thus, from the beginning of the case, our focus must be on whether the petitioner (the worker) can demonstrate contributions to the field that are of “such unusual significance” that it would not be in the national interest to require labor certification.

This is a high standard of excellence.  However, in reviewing the AAO’s unplished cases, it is possible to locate a common theme the USCIS is looking for.

1. Accomplishments

First, the government looks at whether the accomplishments of the worker exceed those of his/her peers in the field. For example, for researchers, they may look at the number and quality of citations by others to the work of the researcher. The question is whether the citation history is typical of similarly-educated researchers in this field. For example, in a recent approval , the petitioner’s citation index which showed over 110 citations to her work. The AAO concluded that this citation history was not typical of similarly-educated researchers in the alien’s field.

2. Expert Opinions Unrelated to the Applicant

Second, they give more weight to opinions from experts in the field who are not directly related or personally acquainted with the petitioner. This theme is related to the first one in the case of researchers, as evidence of world-wide citations show “that the petitioner’s work has attracted attention around the world, influencing researchers well outside of his own circle of collaborators and superiors.”   International recognition is important.

3. The “Essential Contributor” Factor

Third, they look to see whether or not the worker is an “essential contributor” to the project or field.  In one recent case, the AAO discussed how the person “is not merely following instructions issued to him by superiors, but rather he is exercising considerable influence over not only the execution but also the direction of the projects with which he is involved.”  Those projects must be national in scope and benefit the public interest, etc.

When we file a second preference NIW petition, we try to show that the foreign worker is critical to the success of the project that is in the national interest and is regarded as being at the top of their field, etc. The NIW might not be an appropriate option for a worker just starting in her field, who has made few noted contributions and has gained little recognition.  On the other hand, for a well-decorated employee who can demonstrate their contribution to a project is vital to the national interest, the NIW is a good option when an H-1b or L-1 are not available.