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刘宗坤律师专栏

有关NIW的各种似是而非的说法

Myth vs. Truth about National Interest Waiver

Myth: Only scientific researchers are eligible to file National Interest Waiver (NIW).

Truth: NIW is a special classification in second employment-based category (Eb-2). This classification is available to individuals of exceptional ability or persons with advanced degree (M.A., M.S., M.E., M.D., J.D. or Ph.D.) in SCIENCE, ARTS, and  BUSINESS. Although the vast majority of NIW approvals are given to scientific researchers, a substantial number of NIW approvals also go to artists, writers, entrepreneurs, athletes, musicians, performers, educators, and even chefs.

Myth: If I work in a field such as medical research, military technology or energy research, my NIW petition can be easily approved.

Truth: The area of your research is mostly irrelevant to the merit of an NIW petition. No matter how important your work is, you must prove that your specific prior achievements justify the projection that your future contribution to the U.S. national interest is substantially higher than that of your peers.

Myth: Approval of NIW petition totally relies on luck because some weak cases were approved while strong cases were denied.

Truth: While some USICS adjudicators have discretion on NIW cases and from time to time make erroneous decisions, approvals of NIW in general do not rely on luck. Professional presentation of a case after meeting the basic requirements is crucial.

Myth: I cannot file NIW petition because I am not able to obtain letters of recommendation from government agencies.

Truth: While supporting letters from government agencies are helpful, they are not required. The vast majority of successful NIW petitions are submitted without the endorsement from government agencies.

Myth: Regarding the number of letters of recommendation, the more the better.

Truth: The quality of letters of recommendation is more important than the quantity. Excessive documentation with large number of letters repeating the same language does not help a case.

Myth: I am not qualified to file NIW because my publications have not cited by other researchers.

Truth: Many researchers whose publications received no or moderate citations have been granted NIW. Citation is one of the factors to be considered in NIW adjudication, but not the only factor that impacts the outcome of an NIW case.

Myth: I work in an area that closely relates to the US national interest, so my NIW petition will be approved.

Truth: What really matters in NIW petition is to prove your past achievements justify the projection that you will contribute to the U.S. national interest at a substantially higher degree than a U.S. worker with comparable education and experience.

Myth: If my NIW petition is denied, I cannot file it again in the future.

Truth: Denial of NIW petition is “non-prejudicial”, which means, among other things, that it will not bar the petitioner from filing a new petition in the same classification.

Myth: I’d better enclose as many documents as possible to make the NIW petition package thicker and heavier.

Truth: There is a thin but crucial line between proper documentation and excessive documentation. One of the disadvantages of the latter is that the real shining points of your case may be buried in the bulk of irrelevant or little relevant documents.

Myth: USCIS will approve my NIW petition if I can prove that researchers with my expertise cannot be found in the US.

Truth: The law is crystal clear that NIW cannot be granted based on labor shortage.  If there is a labor shortage in your field, you will be asked to take the labor
certification route.

Myth: My advisor or supervisor must write a letter of recommendation to support my NIW petition.

Truth: While a letter signed by your advisor or supervisor may be helpful, it is not required. Many successfully NIW petitions were not endorsed by the petitioner’s
advisor or supervisor.

Myth: My NIW petition will be approved if I can show that my H-1B will reach the six year limit and my departure from the US will be a loss to my ongoing project.

Truth: While this argument does not hurt, it is unlikely to help either. NIW cannot be granted based on the imminent expiration of your non-immigrant status. Again what really matters in NIW petition is that your past achievements justify the projection that you will contribute to the national interest at a substantially higher degree than a US worker with the same minimum qualifications.

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