Advanced Degree Alien Working in the National Interest - The National Interest Waiver (NIW) Application

A National Interest Waiver, like the Extraordinary Ability Petition, is a self-petition. That is, it does not require that an alien have an employer as a sponsor. All employment petitions, except self-petitions, must have an employer sponsor. The employer signs the forms and controls the process. In addition, in order to have the petition approved, one must go through the long labor certification process to test the U.S. workforce to see if there are any U.S. citizens willing and able to take the position. In order to do this, an advertisement is placed in a local newspaper for several days, and all applicants must be interviewed, etc. The National Interest Waiver "waives" the labor certification process and allows an alien to be their own sponsor. They do not need an employer or even a job offer.

Of course the hard part is meeting the requirements for the National Interest Waiver. In order to qualify for a National Interest Waiver, an alien must meet the following requirements:

1. The Alien must be a member of the professions holding an advanced degree (or be of exceptional ability); and,
2. The work of the Alien is in the National Interest.

An advanced degree is easy to understand, it is any degree above that of a bachelors degree. It is harder to understand what the "National Interest" is. This has been defined by the Administrative Appeals Unit of the Department of Justice in a case called In Re: New York Department of Transportation, Interim Decision (AAU) 3363, 1998.

This case laid out a three part test to determine if a petitioner is doing work in the national interest. This test is as follows:

1. The Alien must seek employment in an area of substantial intrinsic merit;
2. The benefit of the Alien's work must be national in scope; and,
3. The alien must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

For a research scientist, the first two prongs of this test are easy to qualify for. Most scientists are performing work that can be related to human disease, even if not directly. This satisfies the "substantial intrinsic merit" criteria, which simply means that the field is a very important field. It also satisfies the "national in scope" criteria because human diseases affect people of all states in the United States and have a "national impact". It is the third criteria that is difficult to satisfy. As stated above, since the purpose of the labor certification process (i.e. the process of advertising a position for your employment petition) is to test the market and see if there are any U.S. Citizen workers able to take the job, you must show that, because of your ability and significant contributions to your field, you have almost extraordinary ability. Therefore, it is important to show that you have published papers in peer reviewed journals (and what the articles are about), that your work has been cited by other people in your field, that there have been articles written about you or your work. It is also vitally important to include letters of recommendation from prominent scientists in your field.

Basically, the types of documents sent mirror those sent for the Extraordinary Ability petition (there is a separate category and description for the "extraordinary ability petition" on this website). You should submit documents to show that you meet as many of the ten criteria as possible. In addition, the letters of recommendation should focus on the contributions that you have made, and how they have benefited the field. It is very important that the letters state in PLAIN ENGLISH what you have accomplished. If the INS cannot understand what you are doing, then they will request additional documents and evidence from you that will explain to them what you are doing. This will prolong your case for several months.

Many scientists can qualify for this petition, and it is much easier for research scientists to qualify than for people in other fields. We have filed many National Interest Waiver petitions for research scientists and have over a 99% approval rating.

Please call or email our office for more information on this petition.