The National Interest Waiver (NIW) is a key option within the employment-based immigration categories, especially for highly skilled professionals seeking a green card without going through the labor certification process (PERM). This article explores in detail what the NIW is, how it works, and why its use has increased since 2021, based on the latest USCIS updates and changes implemented under the Biden administration.
What is the National Interest Waiver (NIW)?
The NIW allows certain highly qualified foreign nationals to obtain a waiver of an employer sponsorship requirement and the labor certification (PERM) process by demonstrating that their presence in the United States is in the national interest. This category falls under the second tier employment-based preference (EB-2).
Eligibility Criteria
According to USCIS guidance, applicants for a NIW must meet three factors set forth in the Matter of Dhanasar decision (2016):
Substantial merit and national relevance: the proposed work must be beneficial to the U.S. in key areas such as health, technology, renewable energy, among others.
Ability of the individual to advance the project: The applicant must demonstrate experience, education, and skills that will ensure the success of their proposal.
Benefit to the U.S.: Eliminating the need for a sponsor and the labor certification process should be more beneficial than traditional alternatives.
Key Changes to USCIS Guidance (2022)
In January 2022, the Biden administration issued new guidance that expanded the scope of the NIW, with a focus on attracting talent in science, technology, engineering, and math (STEM) fields. Updates included:
Examples of specific tests for complex technical areas.
Greater clarity on how to evaluate applicants’ credentials and accomplishments, considering the national impact of their proposals.
These improvements seek to attract high-level talent that can contribute significantly to U.S. economic and technological development.
NIW Under the Trump Administration
During the Trump administration, immigration policies toward high-skilled workers and programs such as the NIW were affected by a more restrictive stance. While no specific changes to NIW criteria were implemented, immigration attorneys and employers noted that USCIS took a stricter approach when adjudicating these applications. There was a perceived increase in Requests for Evidence (RFEs) and rejections due to more conservative interpretations of the statutory requirements.
These policies discouraged many foreign practitioners from applying for NIW, resulting in a significant decrease in approved requests during that period. This is in contrast to the Biden administration, which reversed this trend by easing access and clarifying guidelines for STEM categories.
Impact on Applications and Approvals
The change in policy had an immediate impact on the numbers of applications and approvals. According to the most recent data:
From 2021 to 2022, NIW applications increased 51%, from 14,610 to 21,990.
In 2023, applications rose an additional 81%, reaching 39,810.
Although applications grew, the approval rate dropped from 90% to 80% in 2023 due to increased scrutiny of applications.
This trend highlights the importance of presenting a strong, well-documented case to ensure success.
Advantages of NIW Over Other Options
Avoid the PERM process: This costly and time-consuming program can significantly delay the time to obtain a green card.
Self-petitioning: Applicants do not need an employer sponsor, offering greater flexibility.
Focus on STEM: Recent guidelines favor professionals in scientific and technical fields critical to the U.S.
Challenges and Increased Scrutiny.
Despite the advantages, immigration attorneys note that USCIS officials are applying stricter scrutiny, requesting more evidence in NIW cases. This highlights the importance of working with an experienced immigration attorney who can prepare a strong case and meet the requirements demanded by the authorities.
Is NIW Right for You?
The NIW is an attractive option for highly skilled professionals in fields such as healthcare, technology, education and energy. However, due to complex requirements and increased scrutiny, it is essential to seek expert legal advice to assess your eligibility and present a successful case.
Do you have questions or need personalized guidance?
At Jorge Muñoz Law Firm, we are here to help you navigate the complex U.S. immigration system and maximize your chances of success with a National Interest Waiver. Schedule a consultation today and take the next step towards your future in the United States.
