How the National Interest Waiver Can Be a Pathway to the Green Card for Highly Qualified Individuals

While employers frequently pursue the PERM labor certification process to sponsor an employee for permanent resident status, there are other viable pathways to the green card. 

One option that may provide an alternate path to a green card is the national interest waiver (NIW), which enables qualified individuals the option to bypass the labor certification process.

The Biden administration has announced an active commitment to activate a national vision and drive transformative change across the American STEMM (science, technology, engineering, mathematics, and medicine) ecosystem by markedly expanding access and opportunities and bolstering America’s global competitiveness through the national interest waiver program. As a result of this government initiative, many positions may qualify as roles in the national interest.

The employment-based green card process can be time-consuming given that typically the first step involves a labor certification process that can take over one year to complete. Conversely, the NIW process provides the opportunity to fast-track the green card process if the applicant has an advanced degree, a bachelor’s degree and five years of post-bachelor’s, progressively responsible experience, or exceptional ability in a field, and if the applicant will engage in work that is in the national interest of the United States, such as in the STEMM fields.

To qualify for the NIW, an individual, through self-petition, or a petitioning employer may submit an NIW case that demonstrates 1) the individual’s proposed endeavor has both substantial merit and national importance; 2) the individual is well-positioned to advance the proposed endeavor; and 3) on balance, the proposed endeavor’s impact on the United States would outweigh the need for a labor certification.

Substantial Merit and National Importance

Substantial merit means the individual works in a field that is valuable to the interests of the United States and would deliver a broad national impact. The petitioner must be able to provide evidence focusing on their specific and noteworthy endeavor. An endeavor’s merit and national importance may be established without immediate or quantifiable economic impact, though a stronger petition will seek to employ U.S. workers, improve public health or boost economic growth.

For example, individuals with an expertise in engineering, data science, and computer science fields can lead the development of new technologies as well as the application of novel standards in communications technology, which would be considered of substantial merit and national importance. Businesses and the public increasingly rely on wireless communication devices, systems and networks, which generates a greater need for innovations that enhance user experience and increase technological efficiencies. The increasing demand for innovative products to meet the current demands of businesses and society and to further U.S. competitiveness, can be considered strong factors in the national interest waiver framework.

Well-Positioned to Advance the Proposed Endeavor

The U.S. Citizenship & Immigration Services (USCIS) considers numerous factors when determining whether an applicant is well-positioned to advance the proposed endeavor, including the individual’s education, experience, skill set and accomplishments in the relevant industry. The agency will also review any model or plan in place for the applicant’s endeavor, including any mechanisms for financial support of the endeavor.

An individual can provide numerous forms of evidence applicable to their respective industry, including a copy of their degree, transcripts, industry awards, patents, work product and testimonial letters detailing their previous experience and overall industry success.

However, it’s important to note that there are no set guidelines for the amount or type of evidence needed, as the agency views each application within the totality of the submission.

Additionally, individuals should be aware that USCIS does not require evidence that the endeavor will ultimately succeed, but rather focuses its analysis on whether the applicant has put forth a viable plan for execution.

For example, if an individual holds a master of science degree in computer engineering, and has authored numerous publications on communication technology, ranging from academic articles to journal papers, each of which received dozens of citations in related academic and professional works, this may be demonstrative of their position to advance the endeavor. Additionally, the agency would also consider whether an individual holds any patents in relevant technologies, as this would also evidence an individual’s ability to execute their plan for the endeavor.

Balancing Test to Waive the Requirements of a Job Offer and thus of a Labor Certification

USCIS compares whether the benefits of the proposed endeavor to the United States outweigh the protection of the country’s labor market by conducting a balancing test. This balancing test considers the benefits provided by the proposed endeavor to the national interest and whether these benefits outweigh the need for the labor certification process.

For example, consumers increasingly seek out the most advanced technology to be at the cutting edge of their respective industries. To meet this growing U.S. economic need, individuals who hold advanced knowledge of communication technology are crucial to advancing research and development efforts, which is in the national interest of the U.S. As such, given the urgent need for this technical expertise, a labor certification process for this individual would delay further advancement in this crucial industry.

Given the Biden administration’s focus on STEMM talent, the NIW has become a popular and often successful option for professionals across numerous industries.  

Need to Know More?

For further information or if you have questions about the NIW, please reach out to Partner Rachel Beardsley at rbeardsley@fragomen.com or Associates Laura Flynn and Benjamin McDermott at laura.flynn@fragomen.com and benjamin.mcdermott@fragomen.com, respectively. 

This blog was published on December 21, 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.