As discussed in my earlier post, an NIW is an advantageous method for qualified individuals to start the process toward a green card. This method allows the petitioner to receive a waiver of a job offer before labor certification. The NIW petition, however, is complicated and certain evidence must be provided by the foreign national.
The core of any NIW petition is satisfying the three prongs outlined by the AAO in December 2016. These ask you to show your employment is in both of substantial merit and national importance, that you can continue in this employment, and it would benefit the United States to provide a waiver for normal employment-based visa requirements. Failure to demonstrate each of these three prongs will result in your petition being denied.
To prove these prongs, your petition will consist of evidence, including transcripts, citation records, letters of reference, memberships to professional organizations, media stories, government funding, etc.
So, how do you prove each of these three prongs to ensure you submit a successful NIW petition?
Prong 1: Substantial Merit and National Importance
To satisfy this prong, you must show that your proposed endeavor/work has both substantial merit and national importance. This means that your work must be in line with a national goal and will be beneficial to the United States. If you work in almost any research field, are an entrepreneur, or a savvy business person, an argument can be made as to your national importance. Enhancing the U.S. economy, education or quality of life are excellent arguments to make here.
Often, proving merit and national importance can be done with the same argument. Let’s look at an example of a biochemist working in the cancer field:
Merit: State that your work is cancer research and that your current work in cellular therapy for personalized medicine is improving treatment. Evidence for this is provided by a description of your work in layman’s terms and documents proving the validity of the work. These documents will consist of letters of recommendation from experts in the field and your publication record. Publishing in high-impact journals will strengthen your case.
National Importance: Your cancer research has national (and possibly international) implications if continued. This would be the successful treatment of cancer which increases national health. Evidence for national importance is the same as merit in this case: letters of recommendation and your citation record.
If possible, also include any government funding that you have received for your work. This is an excellent source of evidence as if the United States has funded your work, then it has already been independently determined to be of substantial merit and national interest.
Prong 2: Positioned to Advance the Proposed Endeavor
For a researcher, this is a relatively easy prong to prove if you have satisfied prong one. Here, the USCIS officer is looking at your academic record and likelihood that your work will continue. The work can be continued in your current position, or make the argument that it can be resumed at another institution.
If your career has demonstrated sucess with publications, media reports, conference appearences, professional memberships, and histroy of funding, then it is reasonable to assume that you will be able to continue your work in the United States. If your work has produced a patent (pending patents hold no value to USCIS) than that evidence should be used here too. Your letters of recomendation will also heavily serve as proof of this prong – especially if one is from an expert that has implimented your findings in their research or industry.
If you are not a researcher, say an entrepreneur, then evidence here will be your track record in successfully starting or growing a business. Essentially you need to prove that you can continue your work in the United States.
Prong 3: On Balance, Show National Interest
For this prong, you are required to demonstrate that it is in the national interest of the U.S. to grant you a waiver from normal employment certification processes. This is why the NIW exists in the first place – to enable workers that would normally find it difficult to articulate their particular skills when going through the labor certification process
USCIS will evaluate the foreign national’s credentials, their proposed endeavor, and what reasonable benefit the United States could obtain from that person’s work. The evidence provided in prong one and two will also support prong three. It is beneficial to demonstrate in your petition why it is difficult to obtain normal labor certification, reasons why your work is urgent, or why labor certification isn’t beneficial to the foreign national. This should be stated clearly (with evidence) to prevent the USCIS requesting further evidence for your case.
It is important to note that it should also be clear that the foreign national would still be of benefit to the U.S. even if there are other qualified U.S. workers in the field. However, you do not have to make that comparison directly in the petition any longer.
It nuances like these that make a successful NIW petition an art form. Whether a foreign national is granted an NIW is subjective and at the discretion of the USCIS officer evaluating the case. Of course, guidelines are in place to standardize the process. However, the petitioner is, at the end of the day, at the mercy of a human being and not a standard algorithm.
Every successful NIW petition will have evidence that supports the arguments made as to why the foreign national satisfies each of the three prongs. Evidence will include a detailed curriculum vitae, dependent and independent recommendation letters, citation record, and a layman’s description of your work and future objectives.
What was the Matter of Dhanasar?
This case was decided in late 2016 by the administrative appeals office (AAO) and it changed the requirements for NIW petitions. It was determined that the previous outlines, governed by the NYSDOT three-prong test, were confusing and lead to inconsistencies in the adjudication of NIW cases.