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                                          How Do We Evaluate a NIW Case?

Many foreign nationals seeking permanent residency are overwhelmed by the excess of technical
information on the various options for securing a green card. In this article, we’ll discuss the particulars
of one of these options, the National Interest Waiver.

The relevant law, INA §203(b)(2), sets out the parameters for Employment-Based Second Preference
(Eb-2) visas, which concerns aliens with advanced degrees or exceptional ability. The most common
Eb-2 visa is based on the Labor Certification, which requires the foreign worker to have a permanent
job offer and the support of the U.S. employer. However, the law creates an exception to this process.
An alien can be granted a National Interest Waiver, which requires no job offer or U.S. employer
support, if his/her contributions are deemed to benefit the national interest. However, neither the
statutory law nor USCIS regulations have defined what “national interest” means in this context.

                       1. Major Factors in National Interest Waiver Evaluation

How, then, is one to determine eligibility for a waiver of Labor Certification? Many highly educated and
intelligent applicants have been denied this classification due to ineligibility and questionable
documentation. To avoid unfavorable results, the first step in the process is an evaluation of the
applicant’s credentials. There is no hard and fast rule that determines eligibility, but a close
examination of past appeals and our own cases has given us a workable paradigm. There are a
number of factors that we consider in our evaluation:

• Graduate Degrees: The majority of our clients have earned a PhD. Others are in the process of
earning a PhD and have had unusual success in their graduate study. It is rare, but still possible, for
an applicant who holds a Master’s degree but has achieved outstanding results to secure a National
Interest Waiver.

• Contributions of Significance to the Field: For researchers, significant contributions usually take the
form of peer-reviewed articles, conference presentations, and patents, etc. Although the volume of
publications is a factor, it is possible for a researcher with only a few but influential articles to secure a
National Interest Waiver.

• Influence of the Applicant’s Work: This is most easily measured by the number of citations of an
applicant’s work. Citations are an important factor in this process, but a minimal record of citation does
not necessarily mean that an applicant cannot earn a National Interest Waiver. The Office of
Administrative Appeals (AAO) has ruled that an applicant with sufficient evidence of influence may be
granted a National Interest Waiver even if there is moderate or no record of citations of his/her works.
Other evidence of influence include service as a peer reviewer for scientific journals, media reports of
applicant’s work, awards, and requests for applicant’s technical advice or reprints of one’s work.

• Importance of the Applicant’s Work: This point may appear tricky at first glance. The accepted
standards for this waiver require that the Applicant’s field of research be important to the nation as a
whole. For example, the benefit of the applicant’s research cannot benefit one part of the country at
the expense of another.

• The Applicant’s Qualifications are Unique: One of the critical elements of the National Interest Waiver
is that the applicant must have qualifications that cannot be articulated in the context of a Labor
Certification. Our evaluation takes the applicant’s body of work into account to determine whether or
not this point can be successfully argued. This can be established with letters of recommendation from
experts in the field that assert that the applicant’s qualifications are unique and combine education and
experience with the ability to create results to a degree well beyond that of minimally qualified
candidates. This point is also demonstrated by citations of the applicant’s work, service as a peer
reviewer, and publication of articles in prestigious international journals and conferences.

                     2. Substantive Evidence and Letters of Recommendation

After the initial evaluation, the next step is putting together a sound petition. The primary objective is to
obtain letters of recommendation from the applicant’s colleagues, supervisors, and independent
sources that are familiar with his/her published research results. These letters provide the context for
the documentary evidence that we submit. The recommenders explain the significance of the various
published works on the scientific community and the ways in which this research is relevant to the
national interest. These letters are also used to establish the unique quality of the applicant’s abilities
that are superior to his/her peers with comparable education and experience. Independent letters of
recommendation are an important part of this portion of the evidence because they demonstrate that
the applicant’s accomplishments have been recognized outside his/her immediate circle of colleagues
and supervisors.

The petition must also contain carefully documented evidence of the applicant’s body of work and its
influence on the field of research. This includes copies of publications authored or co-authored by the
applicant, a record of citations of this work by a reputable search engine such as Web of Science,
evidence of the applicant’s service as a peer reviewer, copies of relevant media reports, etc. The
applicant will confer with the attorney to determine which evidence is necessary. This evidence is used
in conjunction with the letters of recommendation to argue the basic points of the National Interest
Waiver.

                               3. Three-Prong Test for National Interest Waiver

According to In re New York State Department of Transportation, the only USCIS adopted AAO decision
for NIW, the standard “test” for the National Interest Waiver can be broken down into 3 prongs:

• the alien must seek employment in an area of substantial intrinsic merit

This prong is applicable to most areas of scientific research. In order to demonstrate that the applicant’
s work is important, we need to be able to clearly explain the application and benefits of the research.
In re New York State Department of Transportation cites the construction of bridges as an area that
has obvious intrinsic merit. Of course, most scientific disciplines directly benefit humankind, and the
letters of recommendation and supporting evidence must indicate the ways in which this research
benefits society.

• the proposed benefit must be national in scope

Once we have shown that an applicant works in an area of substantial intrinsic merit, we need to argue
that these benefits are national in scope. As In re New York State Department of Transportation points
out, this does not mean that the applicant must be involved in projects that directly affect the nation as
a whole. The decision uses as an example an applicant who works on roads and bridges in a specific
area. While this work does not directly impact the nation, it represents technological progress that may
be used by others in various parts of the United States. In addition, this opinion makes the point that
research of national importance cannot be contrary to any part of the nation. The example for this
point is a dam that provides water for one area while depriving another. Thus, if an area of research is
of substantial intrinsic merit and is not contrary to the interests of any portion of the United States, we
can argue that the benefits are national in scope.

• the national interest would be adversely affected if a labor certification were required for the alien

Of these three requirements, this is the most difficult to demonstrate. In the legal precedent used to
establish these standards, In re New York State Department of Transportation, AAO ruled that to show
that a labor certification would be contrary to the national interest, the applicant needs to prove that
he/she is capable of performing at a substantially higher level than a minimally qualified U.S. worker.
This is a subjective standard that requires skilful argument on the part of the attorney and
appropriately worded letters of recommendation. We have successfully established this point in close
to 100% of our National Interest Waiver cases.

                                    4. Liu & Associates and National Interest Waiver

In order to maintain our high standards, we choose not to argue cases with a poor chance of success.
Clients who do not qualify for a National Interest Waiver do have other options, and we will help a client
choose the best option for their case. All clients applying for a National Interest Waiver will be given a
clear breakdown of their case’s chances of success.

If USCIS requests additional evidence for any given case, we will quickly review the request and
compile the additional evidence. Thus far, we maintain a close to 100% success rate for cases that are
issued a Request for Evidence. In the rare instances when a case is denied, we carefully review the
evidence before taking the next step. Oftentimes these cases have met the standards set out in INA
§203(b)(2) and relevant AAO decisions. In such cases, we evaluate the situation and decide if it is
practical for the client to appeal the denial to AAO. If, for practical considerations, we do not
recommend appeal, we will seek other alternatives, such as filing a new petition in the same or a
different classification.

Our office is committed to securing the best possible result for all of our clients. Through every step of
the process, our experienced attorneys provide advice and up-to-date information on the status of a
client’s case.

                                                            5. Free Evaluation

If you are interested in a free evaluation of your case, please email your full resume of CV to
evaluation@niwus.com. The information sent to us through this email address is for the purpose of
evaluation only, and we hold all information we receive strictly confidential.