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Articles Posted in National Interest Waiver

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When seeking U.S. permanent residency under the EB-2 visa category, which is designed for individuals with advanced degrees or exceptional abilities, the National Interest Waiver (NIW) presents an option. This waiver essentially waives the job offer requirement and the test of the U.S. market for U.S. worker, assuming the applicant’s endeavor will significantly benefit the United States. However, the complexity and strictness of the evidence required to prove such benefit mean that many applicants fail without adequate legal guidance. Zneimer & Zneimer P.C., a law firm with extensive experience in NIW petitions, has reviewed over two thousand AAO decisions and can spot common pitfalls to avoid RFEs or denials.

Understanding the NIW Criteria

The criteria for an NIW, set by the precedent case In re Dhanasar, are stringent:

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In the realm of U.S. immigration law, the National Interest Waiver (NIW) is a pathway for professionals seeking a green card without the need for a specific job offer or labor certification. However, proving that an endeavor is of “national importance” remains a difficult aspect of the NIW application process. At Zneimer & Zneimer, our extensive experience with NIW applications offers insights into what makes a successful claim of national importance, and how applicants can avoid common pitfalls.

The concept of “national importance” extends beyond the mere significance of an applicant’s work. It requires demonstrating that the proposed endeavor has substantial merit and the potential for wide-reaching impact across the United States. This includes, but is not limited to, contributions to the economy, healthcare, technology, education, or the environment.

We have analyzed over a thousand AAO decisions to determine what the USCIS is looking to determine whether the endeavor is of national importance.  Some examples can illustrate the evidence required:

  • A compelling example of national importance can be seen in the case of a neurosurgeon whose research directly contributes to advancements in stroke treatment. Despite the substantial merit of their work, the application was initially unsuccessful due to a lack of specific evidence tying the proposed research to broader national health outcomes. This highlights the importance of not just stating the merit of an endeavor but clearly connecting it to a national issue.
  • Renewable Energy Engineering: An engineer specializing in solar energy technologies developed a new, more efficient solar panel system. This endeavor was granted an NIW as it directly supports national goals for renewable energy adoption and reducing carbon emissions.
  • In the tech sector, an application succeeded by demonstrating how a software developer’s work in cybersecurity would address national security concerns, emphasizing the applicant’s unique qualifications and the specific outcomes of their work. This case underlines the effectiveness of showcasing an endeavor’s direct link to national priorities
  • A developer creating accessible educational software for underserved communities received an NIW. Their project was seen as crucial for addressing national challenges in education equality and access.
  • A researcher’s project focused on developing sustainable agriculture practices that would not only improve food security but also reduce environmental impact, received NIW due to its potential for national impact on both agriculture and environmental policies.
  • A public health professional working on innovative strategies for epidemic control, including the development of rapid testing methods, was recognized for their work’s national importance in improving public health emergency responses.
  • A scientist’s research focused on developing treatments for a rare disease was granted an NIW. The research’s potential for groundbreaking medical advancements and its alignment with national health priorities underscored its national importance

Here are several examples where USCIS found insufficient evidence of national importance:

  • A frequent issue arises when applicants provide broad statements about the importance of their field without delineating how their specific endeavor addresses a national concern. For instance, a human resources specialist claimed national importance based on general benefits of HR practices without detailing the unique impact of their work
  • Another pitfall includes failing to substantiate claims with robust evidence. An application lacked detailed information about how a nurse practitioner’s work with elderly patients would specifically influence national healthcare standards, despite the critical need in geriatric care.
  • A neurosurgeon and researcher failed to provide specific details about his proposed endeavor. Claims were broad, like intending to work in “research, industry, and academics” without elaborating on specific plans or how his work addresses a national issue .
  • A nurse practitioner failed to qualify for NIW.   Although qualified as a professional holding an advanced degree, the petitioner did not demonstrate how her work in providing patient care significantly impacts national healthcare standards or addresses national concerns beyond local community benefits .
  • A Human Resources Specialist’s proposed endeavor in human resources was deemed too general and lacking in specifics on how it would impact national employment or HR practices significantly. Broad statements about the importance of HR practices were not tied to national interests or specific outcomes .

To successfully argue national importance in an NIW application, Zneimer & Zneimer recommends the following strategies: Continue reading →

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After reviewing thousands of AAO decisions and drawing insights from their analysis, the most difficult prong to overcome for noncitizens is the national importance of the endeavor.   It is clear that understanding what constitutes “national importance” is pivotal in NIW cases. Through the analysis of appeals and the reasons for denial, we focus on the intricacies of the NIW application process for pilots.   The journey to approval is fraught with turbulence, particularly in illustrating the national importance of one’s contributions. Zneimer & Zneimer, a renowned Chicago immigration law firm, sheds light on this intricate process, offering pilots a guided navigation through the NIW application’s complexities.

At the heart of the NIW application lies the need to demonstrate that the work is of national importance. For pilots, this means transcending beyond the cockpit to impact broader national priorities such as aviation safety, innovation, or efficiency. The recent decisions in NIW cases highlight the critical nature of aligning personal endeavors with national interests, showcasing that a well-documented argument can make all the difference.

Common Pitfalls for Pilots:

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When talented professionals consider making the United States their permanent home, the National Interest Waiver (NIW) presents a unique pathway, bypassing the traditional job offer and labor certification requirements when it is in the national interest to  waive the testing of the job market for the availability of US workers. However, one pivotal question often emerges: “What is considered of national importance?” Zneimer & Zneimer, a leading Chicago immigration law firm with extensive experience in successful NIW applications, sheds light on this critical aspect.

Defining National Importance.  At its core, national importance refers to endeavors that significantly benefit the United States. This could mean contributing to the U.S. economy, healthcare, education, or technological advancement. However, the U.S. Citizenship and Immigration Services (USCIS) looks for specific criteria:

  • Substantial Merit: The endeavor should have significant potential to create a national impact, not just within a local community or industry.
  • Broad Implications: It should address critical challenges facing the nation, offering solutions or advancements that have widespread benefits.

We analyzed thousands of AAO decisions and here are some examples which the immigration attorneys of Zneimer & Zneimer found to be areas where NIW applications have successfully demonstrated national importance:

  • Technology and Innovation: Advancements in AI, cybersecurity, or renewable energy that enhance national security or environmental sustainability.
  • Healthcare: Research or practices that address public health crises, improve healthcare delivery, or combat diseases with significant public health implications.
  • Education: Initiatives that transform educational methodologies, particularly in STEM fields, addressing the national need for a skilled workforce.

Drawing from their wealth of experience, Zneimer & Zneimer points out common pitfalls:

  • Lack of Specificity: General statements about the importance of a field do not suffice. Applications must clearly articulate how the individual’s specific endeavor impacts national priorities.
  • Insufficient Evidence: Successful applications are supported by tangible evidence, such as studies, expert letters, and data, demonstrating the endeavor’s impact.

How Zneimer & Zneimer Can Help Continue reading →

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The key to a successful NIW application lies in demonstrating that the endeavor has substantial merit and national importance. The Chicago immigration attorneys at Zneimer & Zneimer, analyzed over one thousand appellate decisions and identified common pitfalls that lead to the denial of NIW applications. In several blog post we will shed light on what “national importance” really means and how to position the application for success.

The term “national importance” is a threshold requirement in NIW applications but is not explicitly defined by U.S. immigration law. Analysis of appeals decisions, reveals that national importance extends beyond the potential benefits of an endeavor to how it addresses broader national challenges. Whether it is advancing technological innovation, contributing to the healthcare system, or enhancing educational methodologies, the endeavor must have significant implications that align with national priorities.

Common Pitfalls in Demonstrating National Importance

Lack of Specificity: A recurring theme in unsuccessful NIW appeals is the failure to articulate how the endeavor specifically addresses a national issue. For example, stating that a project contributes to economic growth without detailing its direct impact on national priorities is often insufficient.

Overemphasis on Personal Achievements: While personal qualifications and achievements are important, several appeals were denied because applicants did not effectively tie their personal successes to the national impact of their proposed endeavor.

Insufficient Evidence of Impact: Successful applications typically include robust evidence, such as endorsements from government entities or industry leaders, data projections, and case studies demonstrating the national significance of the endeavor. Appeals decisions often cited a lack of such evidence as a reason for denial.

Drawing from the insights of Zneimer & Zneimer’s extensive experience, here are strategies to enhance your NIW application:

  • Align With National Goals: Research current national priorities and clearly demonstrate how your endeavor aligns with these goals. Whether it is contributing to national security through cybersecurity advancements or addressing public health crises, specificity is key.
  • Quantify Your Impact: Provide concrete, quantifiable evidence of how your work will benefit the nation. This could include potential job creation, economic impact assessments, or contributions to critical research areas.
  • Leverage Expert Opinions: Seek endorsements from recognized experts or government officials who can vouch for the national importance of your endeavor. Their insights can add significant weight to your application.
  • Document Your Endeavor: Include a detailed plan outlining how you intend to achieve your goals, supported by evidence of any progress made to date. This demonstrates both your commitment and your project’s feasibility.

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In the complex web of U.S. immigration law, the National Interest Waiver (NIW) is a pathway for professionals and entrepreneurs wishing to contribute significantly to American society. At the Chicago immigration law practice of Zneimer & Zneimer, we have had the privilege of providing legal guidance to many noncitizens through the intricacies of the NIW process, leading to many approvals and ultimately permanent residence. Our extensive experience, coupled with a thorough analysis of thousands of appellate decisions, has equipped us with unique insights into the common pitfalls applicants face, especially regarding demonstrating national importance.

A critical stumbling block for many NIW applicants is proving that their work is of national importance. The U.S. Citizenship and Immigration Services (USCIS) sets a high bar for this criterion, requiring evidence that an applicant’s endeavors will significantly benefit the United States. Unfortunately, many well-intentioned and highly qualified individuals falter at this hurdle.

Common Failures and Examples we Identified

1. Broad Assertions Without Concrete Impact. Many applicants make the mistake of relying on broad assertions about the importance of their field without linking their specific contributions to tangible, national outcomes. For instance, a researcher in renewable energy might highlight the global need for sustainable sources but fail to demonstrate how their specific project addresses an unmet need within the United States or leads to advancements with wide-reaching implications.

2. Misalignment with National Priorities. Another frequent oversight is failing to align the proposed endeavor with explicitly stated national priorities or initiatives. An entrepreneur in the tech industry, for example, may develop a groundbreaking application without showing how this innovation supports national objectives in technology competitiveness, cybersecurity, or economic development.

3. Inadequate Documentation of Broader Implications. Applicants often underestimate the importance of substantiating the broader implications of their work. A case in point involved a medical professional specializing in rare diseases who provided extensive documentation on their clinical expertise and patient care but lacked evidence on how their research or treatments could influence national healthcare strategies or public health policies.

4. Lack of Distinct Contributions. A common pitfall is the failure to distinguish personal contributions from the broader field. For example, an architect promoting sustainable urban development might present a compelling vision for green cities but fail to delineate their unique contributions or how their work sets new standards or models for national adoption.

5. Overlooking Quantifiable Economic or Societal Impact. Finally, many applicants struggle to present quantifiable evidence of their economic or societal impact. A financial analyst advocating for more equitable housing financing solutions provided a wealth of theoretical knowledge but fell short in demonstrating the national economic impact, such as evidence of reduced housing disparities or improved financial accessibility for underserved communities. Continue reading →

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The Immigration and Nationality Act provides that noncitizens with exceptional abilities or who are members of the professions holding an advanced degree, may receive a waiver of the job offer requirement if the USCIS deems such waiver in the “national interest.”  The national interest waiver is available only to noncitizens in the second preference category (EB-2).  This category is backlogged for years for noncitizens born in India or China, and without the ability to apply for adjustment of status for many years, such noncitizens will have to maintain H-1B status.  The requirement to maintain nonimmigrant status puts such noncitizens in a bind and makes it very difficult to develop their endeavor even if such endeavor meets all the requirements for a national waiver.   Noncitizens who apply for National Interest Waiver should be allowed to apply for employment authorization.

To prove eligibility, the petitioner has the burden to show that the person qualifies as either (i) a member of the professions holding an advanced degree or (ii) as a person of exceptional abilities.  Either of these two qualifications is a threshold issue.  Once the person demonstrates that such person meets at least one of the categories, the person also must prove that (iii) the waiver of the job offer requirement, which requires a test of the US market through labor certification requirement, is in the “national interest.” Continue reading →

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A foreign national epidemiologist petitioned USCIS for an immigrant petition, filing a petition herself, without an employer.  She argued that her work is important for the national interest of the U.S. and the USCIS should not require her to have a job offer.  USCIS disagreed and the epidemiologist appealed to the Administrative Appeals Office (“AAO”). The AAO dismissed the epidemiologist’s appeal, agreeing with USCIS’s decision.

One way a foreign national living in Chicago or elsewhere can become a permanent resident is through employment, if a U.S. employer petitions for the foreign national.  To sponsor a foreign worker for permanent residence, a U.S. employer must go through an expensive, complicated, and lengthy application process to the Department of Labor for a labor certification.  The Department of Labor must certify that the employer has tested the U.S. market and that there are no U.S. workers that are willing, able, qualified, and available to take this employer’s position.  Only then can an employer petition USCIS for an immigrant petition on behalf of a foreign worker.

The labor certification process is important to the national interest.  It ensures that a foreign national does not displace an available U.S. worker that is minimally qualified for the job.  In certain unique cases where a foreign national’s work is very important for the U.S., testing the U.S. market and seeking a labor certification may not be in the national interest.  In such cases, a foreign national can file his or her own petition and seek a waiver of the job offer requirement and the labor certification process.   We call this “a petition for a national interest waiver.”

The Administrative Appeals Office that reviews decisions of USCIS, has outlined an analytical framework for USCIS in Matter of Dhanasar, 26 I. & N. Dec. 884 (AAO 2016). USCIS applies this framework on a case by case basis to decide if it should waive the labor certification process for an alien worker as a matter of national interest.

The Chicago law firm of Zneimer & Zneimer is tracking decisions under the NIW framework and is providing a summary of decisions applying Matter of Dhanasar.  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Petitioner’s Claim: The alien was an epidemiologist and a program officer in an HIV/STD prevention program focused on expanding HIV prevention.  The alien worked in data management, monitoring HIV testing grantees, and evaluating their effectiveness at providing preventive services.  The petitioner also tracked trends of HIV epidemic, helping her organization to direct efforts Continue reading →

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Our law firm often works with foreign national whose work is in the national interest of the United States.  The lawyers of  Zneimer & Zneimer are tracking decisions under the new NIW framework under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).

The framework imposes three prongs on petitioners who claim that they should be allowed to immigrate to the United States based on a proposed endeavor that would be in the national interest of the United States:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).

The most recent decision came on appeal from a denial from USCIS Texas Service Center in Matter of D-D-P (AAO May 25, 2017).  In Matter of D-D-P, an entrepreneur lost his bid to qualify for a national interest waiver before USCIS.  He appealed to the Administrative Appeals Office (“AAO”).

The AAO did not reach the merits of the entrepreneur’s claim that he is eligible for a national interest waiver and did not reach the three prongs of Matter of Dhanasar.  The businessman lost his case on a threshold matter because the AAO found that he was neither a member of the professions holding advance degree or their equivalent, nor that he had exceptional abilities.  Thus, although this AAO decision did not discuss the new framework, the decision is still an important reminder that there are threshold issues that foreign nationals must meet before they can make separate showing that a waiver of the job offer requirement is in the national interest. We outlined in more detail the requirements and the framework in our earlier blog.

Petitioner’s Claim:  In this case the alien argued that he was an individual of exceptional abilities in the business world.  In the initial filing, the alien stated that he was a “chief executive/entrepreneur” and that he intended to “use his broad experience as a successful entrepreneur to create business opportunities for himself and US workers. He will transfer his wealth of knowledge of developing business in the harshest of climates to the US environment.”   He claimed that he planned to “replicate his success in Nigeria to US markets with positive effect on employment and renewable energy systems.”  The petitioner claimed that he “has created five extremely successful businesses in information and communication technology, renewable energy systems, online travel and reservation systems, turnaround innovation and business counseling.” He claimed that through these companies he had provided “nine billion” dollars of energy services to the “highest level of government and the private sector.” Continue reading →

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The Chicago law firm of Zneimer & Zneimer is tracking decisions under the new NIW framework and is providing a summary of decisions applying Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016)

In  a recent appeal from a national interest waiver denial issued by the Nebraska Service Center, the AAO determined that a physician and cardiology researcher did not meet the second and third prong of the National Interest Waiver framework that the AAO announced in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Petitioner’s Claim: The alien was pursuing postgraduate medical training as a general cardiology fellow in a one year fellowship.  He claimed that his clinical work would have an effect “on the health care system of the United States as a whole” and that his “medical research is having a widespread impact on the quality of medical care across the United States.”  He treated and did research on a “wide range of heart conditions, including systolic heart failure.”  Proposed research endeavor was to understand unique heart conditions and identify proper methods of diagnosis and treatment.

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