The U.S. immigration system poses significant hurdles for foreign nationals seeking employment within the United States. With few exceptions, employer sponsorship is generally required. For many, the sole avenue to obtain temporary work authorization is through the H-1B category, which is subject to an annual cap. Due to the restricted number of H-1Bs available each fiscal year, the ability to even petition requires selection through a lottery process. There may be other nonimmigrant alternatives to the H-1B for certain foreign nationals, such as treaty-based options for foreign nationals from eligible countries, certain employees of multinational organizations, or those with extraordinary ability. Nonetheless, these options remain limited and do not align with the needs of the U.S. labor market.
Further, the permanent residency process is normally slow and arduous. Most employers must conduct a test of the labor market, or a PERM, to determine whether there are any willing, qualified, or available U.S. workers for the position they seek to fill permanently with the foreign worker. The PERM process is time-consuming and expensive, and the employer must bear all costs. Currently, the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) are experiencing unprecedented backlogs, which has only compounded the frustration of a highly regulated and cumbersome process for employers and employees alike. As for alternatives to the PERM program, there are limited options for individuals with extraordinary abilities, outstanding researchers, and multinational managers. Nurses, physical therapists, and individuals of exceptional ability also have a more streamlined path to permanent residency. However, due to backlogs and the fact that per-country quotas were established more than 30 years ago, these categories have their own challenges. Accordingly, the timeline and lack of options make the permanent residency process lengthy and sometimes nonviable for foreign nationals seeking U.S. permanent residency. This is especially true for those who were not lucky enough to be selected in the H-1B lottery, or who may be approaching a maximum date of their nonimmigrant status and cannot extend or obtain work authorization fast enough through the traditional PERM channel due to significant backlogs.
Given these challenges, the National Interest Waiver is becoming increasingly appealing as a pathway to permanent residency, particularly for those with advanced degrees in STEM fields or for individuals like entrepreneurs who may not be eligible to seek permanent residency through PERM. If qualifying, there are a few strategies that can increase the strength of the pitch that we will explore in this blog, with a particular focus on those in STEM fields.
What is the National Interest Waiver?
The vast majority of employment-based permanent residency sponsorships must first pass a test of the labor market to ensure that there are no willing, qualified, or available U.S. workers to perform the offered position. This process is called a labor certification, or PERM. The National Interest Waiver (NIW) is a pathway to permanent residency that essentially requests that USCIS waive the requirement of a job offer and, consequently, waive the labor certification requirement. The NIW is a second preference category classification (EB-2) and is available to those “who are members of the professions holding advanced degrees” or who are foreign nationals of “exceptional ability” who can demonstrate that it is in the national interest of USCIS to waive the requirement that the worker’s “services in the sciences, arts, professions, or business” be sought by an employer in the United States.
There is no definition of “national interest,” and therefore, the category has been shaped by case law. According to the current standard outlined in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), there are three requirements to qualify for a national interest waiver:
- The applicant’s planned work has substantial merit and national importance;
- The applicant is well-positioned to advance that endeavor; and
- On balance, it benefits the United States to waive the job offer and labor certification requirements.
Note that the third prong of the Dhanasar test balances the interest served by the foreign national’s endeavor against the purpose of the PERM program, which is to protect the wages, working conditions, and jobs of U.S. workers. Because this is also an important national interest, the foreign national’s endeavor must be sufficiently compelling to outweigh the benefits of the job offer and labor certification requirements.
The NIW category is one of the few employment-based categories under which a beneficiary may self-petition. Thus, the NIW does not require employer sponsorship. The date of filing the NIW petition becomes the foreign worker’s priority date, which is the date used to determine eligibility to file for permanent residency. In the traditional PERM context, a priority date is conferred as of the date the PERM application is filed. So, if successful, a NIW filing can speed up the permanent residency process by as much as 1.5 to 2 years based on the time it is currently taking to prepare and file a PERM.
USCIS Policy Manual – An Excellent Guide and a Must Read Before Preparing an NIW Case
To assess whether the NIW is a viable option, it is important to analyze each of the three prongs from the Dhanasar test. The USCIS Policy Manual is an excellent guide in evaluating and crafting an NIW case. It specifically addresses what factors USCIS should consider in adjudicating an NIW case, how heavily they should be weighted, and the special considerations for individuals with STEM degrees pursuing work in their field. Here are some highlights as to how USCIS will evaluate petitions in STEM fields:
1. In evaluating national importance –
a.) “if the evidence of record demonstrates that the person’s proposed endeavor has the potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology of field of study, it may rise to the level of national importance.”
b.) “USCIS recognizes the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially if focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.
2. In evaluating whether the beneficiary is “well-positioned” –
a.) “In evaluating whether the person is well positioned to advance the endeavor, USCIS considers factors including, but not limited to:
• The person’s education, skills, knowledge, and record of success in related or similar efforts;
• A model or plan that the person developed, or played a significant role in developing, for future activities related to the proposed endeavor;
• Any progress towards achieving the proposed endeavor; and
• The interest or support garnered by the person from potential customers, users, investors, or other relevant entities or persons.”
b.) “USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong.”
3. In weighing the value of the proposed endeavor against the competing interests protected by the labor market test –
a.) “…in establishing eligibility for the third prong, petitioners may submit evidence relating to one or more of the following factors…
• The impracticality of a labor certification application;
• The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available;
• The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.”
b.) “More specific considerations may include:
• Whether urgency, such as public health or safety, warrants foregoing the labor certification process;
• Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification;
• Whether the person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and
• Whether the person’s endeavor may lead to potential job creation.”
c.) “When evaluating the third prong and whether the United States may benefit from the person’s entry, regardless of whether other U.S. workers are available (as well as other factors relating to prong three discussed above, such as urgency), USCIS considers the following combination of facts contained in the record to be a strong positive factor:
• The person possesses an advanced STEM degree, particularly a Ph.D.;
• The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
• The person is well positioned to advance the proposed STEM endeavor of national importance.”
d.) “The benefit is especially weighty where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.”
Thus, while the entire Policy Manual is a valuable tool, it makes clear that critical and emerging technologies and other STEM areas are important to U.S. competitiveness on the world stage, those with STEM-based Ph.D. degrees should be given special consideration, the economic impact on the U.S. is important — particularly in terms of the potential for job creation.
3 Tips to Prepare a Stronger NIW Case
There are certainly ways to strengthen an NIW case. Preparation of an NIW requires packaging the case in a way that clearly demonstrates the impact on the United States, and it is often necessary to simplify highly complex concepts in a manner that a USCIS officer can understand. The adjudicating officer is probably not familiar with the field of endeavor, so the filing must clearly and succinctly explain the objective of the foreign national’s work and how it is essential to a particular policy goal of the United States. Adjudicators are instructed to follow the USCIS Policy Manual, so it is important to be familiar with the guidance and submit evidence accordingly.
Tip #1 – Define your field of endeavor with specificity.
In order to qualify for the NIW, the proposed “endeavor” must have substantial merit and national importance. USCIS provides the following guidance regarding an “endeavor”:
The term “endeavor” is more specific than the general occupation; a petitioner should offer details not only as to what the occupation normally involves, but what types of work the person proposes to undertake specifically within that occupation. For example, while engineering is an occupation, the explanation of the proposed endeavor should describe the specific projects and goals, or the areas of engineering in which the person will work, rather than simply listing the duties and responsibilities of an engineer. The endeavor’s merit may be demonstrated in areas including, but not limited to, business, entrepreneurship, science, technology, culture, health, or education.
Therefore, rather than listing duties associated with a position or assignment, it is important to ask: What is the goal of your research? What is the ultimate objective of your position? How do you want to advance your field?
Here are a few examples of proposed endeavors in recent cases we have filed:
- For a chemist engaged in biomedical research: Synthesize organic compounds used in drug development and delivery through the application of organic synthesis theories and procedures, to include research in the areas of nucleic acid and protein synthesis and payload linkers for antibody drug conjugates.
- For a mechanical engineering professor researching wind energy: Develop novel ways to generate power from wind energy by developing new wind turbine designs considering capacity for power production, cost, and use in nontraditional settings such as urban environments.
- For an economist engaged in tracking state employment trends: Apply advanced research techniques, including prescriptive and predictive analytics through statistical modeling, econometric modeling, and data science to provide insights into employment trends and projections that will inform the policy decisions impacting the lives of workers and business interests in the state.
As these examples show, the endeavor is a tool to succinctly summarize the value of the foreign national to the U.S. national interest served. It is also necessary that the petition can connect the endeavor to the foreign national’s accomplishments, education, and work history, as the second prong of the Dhanasar test requires a showing that the foreign national is well-positioned to advance the endeavor. So, for example, while a mechanical engineer may endeavor to engage in activities relating to electric vehicle (EV) production, if that engineer has never worked in the EV space, the endeavor may need to be pitched more generally to consider the credentials that qualify the foreign worker to pursue his interests in the United States. Establishing the endeavor should be the first step in preparing any NIW case as it serves as the foundation of the case.
Tip #2 – Leverage government data and resources and provide statistics and figures to support your claims.
The easiest way to demonstrate that the United States has a policy interest in a particular area is by pointing to government sites or resources that either state or describe that interest. Here are a few excellent resources that can be referenced:
- Critical and Emerging Technologies List – On February 8, 2022, the White House published an updated list of critical and emerging technologies (CETs), which serve to inform strategies on U.S. technological competitiveness and national security. CETs are a subset of advanced technologies that are potentially significant to U.S. national security in terms of protecting the security of the American people, expanding economic prosperity and opportunity, and realizing and defending democratic values. The CET List designates 19 technologies, as well as various subfields of importance. **As noted above, the USCIS Policy Manual considers work that furthers a critical and emerging technology to be a particularly strong factor in evaluating the third prong of the Dhanasar
- National Security Strategy – This report on U.S. strategy on national security can be an incredibly helpful resource. For instance, there is a section on climate and energy security as well as pandemics and biodefense. We have used the section on food insecurity to argue the importance of advanced food manufacturing technologies to U.S. interests in a national interest waiver case submitted on behalf of a manager within the food production industry. This document also contains a section on technology, and contains very useful quotes on the importance of technology and innovation to economic prosperity and military strength.
- National Cybersecurity Strategy – This document does an outstanding job of discussing the advancements of technology and how cyber technologies impact everyday life.
- National Strategy for Advanced Manufacturing – The National Strategy for Advanced Manufacturing is based on a vision for United States leadership in advanced manufacturing that will grow the economy, create quality jobs, enhance environmental sustainability, address climate change, strengthen supply chains, ensure national security, and improve healthcare. The document discusses how this vision will be achieved by developing and implementing advanced manufacturing technologies, growing the advanced manufacturing workforce, and building resilience into manufacturing supply chains. Strategic objectives are identified for each goal, along with national technical and program priorities and recommendations for the next four years.
- Employment Projections from the Bureau of Labor Statistics – If a field is experiencing rapid growth, it may be useful to highlight the employment projections for a particular occupation from the Bureau of Labor Statistics webpage.
- CHIPS and Science Act of 2022 – The Chips and Science Act provided $52.7 billion for American semiconductor research, development, manufacturing, and workforce development. However, the CHIPS and Science Act touches so much more than semiconductors. For instance, Title I contains a list of directives for the advancement of energy science and Title II directs the National Institute of Standards and Technology (NIST) to engage in research and testing to support the establishment of standards across a number of technology fields. It also articulates government priorities in terms of STEM education.
- Government websites – Pull resources from the Environmental Protection Agency (EPA), U.S. Department of Agriculture (USDA), Department of Defense (DOD), Department of Labor (DOL), Bureau of Economic Analysis (BEA), U.S. Economic Development Administration, Department of Energy, National Science Foundation, etc. Normally, government agencies will publish their priorities, and their websites will contain a wealth of information that can support an NIW case.
While not government-produced, there are also a number of reports by key players in certain industries that may prove useful. For example, McKinsey and Company publishes some great reports. Its Technology Trends Outlook 2023 discusses the latest technology trends and contains useful insights and data. It also published a useful article explaining the CHIPS and Science Act that provides citable facts to support the government’s semiconductor initiatives.
Tip #3 – Maximize the Value of Reference Letters
Reference letters are perhaps the most important, yet most underutilized, evidence in support of an NIW case. Authors should be selected carefully so that each letter serves a different purpose. Reference letters provide an opportunity to tie together evidence or fill in gaps. For example, one letter may come from a university professor to explain how a particular research objective furthers a U.S., policy interest, while another letter may come from a former advisor or work colleague detailing the specific accomplishments of the individual’s work and explain how the foreign worker will be able to build upon his work to advance the field of endeavor.
Reference letters should not merely regurgitate the foreign worker’s resume or offer praise of their work and personal attributes. Instead, reference letters should be used to explain why a particular accomplishment was significant in the context of the field or industry, or offer insight into how U.S. interests would be served if the foreign national were permitted to remain in the U.S. Letters may also be utilized to explain the field, which is especially useful where the foreign national is engaged in a field that is highly complex or technical.
Conclusion
With the right facts and a strategic presentation, the NIW stands as a promising pathway for foreign nationals seeking permanent residency in the United States, especially for those in STEM fields. It is important to carefully strategize and document each point in order to present a winning case. Reference letters, government resources, and reports from reputable firms or think tanks are excellent tools to leverage. The NIW requires close collaboration between the foreign national, the attorney, and, in some cases, the employer.
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About the Author:
Heather Frayre is a Member in Dickinson Wright’s El Paso office, where she assists clients in navigating immigration matters tied to the recruitment, hire, transfer, and retention of foreign workers. She counsels corporate and individual clients on a full range of immigration matters, including non-immigrant visas, permanent residency, and citizenship, as well as issues tied to worksite compliance. She can be reached at 915-541-9370 or hfrayre@dickinsonwright.com.