National Interest Waivers
For certain foreign nationals whose abilities and skills place their immigration in the “national interest” of the United States, the labor certification process may be waived, and they may file an immigrant petition and an adjustment of status application simultaneously. This is popularly known as a National Interest Waiver, or “NIW.” Because this type of immigrant categorization does not require an employer sponsor, a foreign national may apply for him or herself.
Interestingly, there is no statutory standard for the basic credentials required. Instead, the Administrative Appeals Office (AAO), which is a government organization having jurisdiction to review appeals for certain types of immigration cases, set out a basic standard for NIW in a 1998 case, which has since been utilized by the USCIS (Matter of New York State Department of Transportation, 122 I&N Dec. 215). These basic conditions for the waiver of the labor certification process include:
1) That the area of intended employment is of substantial intrinsic merit.
This qualification requires that the work to be performed by the alien has some very important benefit. For example, a medical researcher who studies the development of multiple sclerosis is doing something that has extremely significant consequences; he or she is learning more about a disease, potentially leading to a cure.
2) That the proposed benefit is national in scope.
The question here is how will the work benefit the nation overall? In the case of the medical researcher studying multiple sclerosis, the answer would be that multiple sclerosis affects more than a quarter of a million people in the United States. It causes the breakdown of bodily functions and hinders movement. As a result, it is devastating to individuals suffering from it, as well as to their families. More information and an eventual cure for the disease will benefit countless people all over the United States, and thus, the nation as a whole.
3) That it is contrary to the national interest to deprive the prospective employer of the services of the alien by making the position available to United States workers.
This prong of the qualifications requires a balancing test: does the alien’s background and work outweigh the national interest of protecting American workers through the labor certification process? In other words, how are the alien’s background, skills, and accomplishments so extraordinary and unique that no one else could possibly fill his or her shoes? In the case of the multiple sclerosis researcher, the answer would be that he is individually making discoveries—no one else is working on this, has his knowledge of it, or has his list of previous findings and accolades.
In sum, in order for an alien to meet the standard for a National Interest Waiver, he or she must have extraordinary abilities, and must have already achieved a long list of accomplishments that prove he or she will be able to achieve even more in the field. Additionally, there must be a strong argument that whatever the alien is working on is important for some reason, and that the work will benefit the nation. For example, an alien who specializes in building paper airplanes, while they may be the best paper airplanes in the world, would not qualify for a National Interest Waiver because there is little argument to be made that the field is of substantial intrinsic merit, or will benefit the nation.