National Interest Waiver – Special guidance for STEM graduates and professionals

There are many ways a person can obtain permanent residency in the United States. In the area of employment based immigration, as part of the EB-2 category, the immigration regulations provide a path to permanent residency (green card”) to people who can demonstrate that it would be in the national interest of the United States to waive the requirement of Labor Certification. This waiver of the job offer/Labor Certification is known as the “National Interest Waiver” (NIW). 

In January 2022 the Biden administration published a guidance directed to adjudicators and stakeholders providing explanation on how non-citizens having an advanced degrees in the fields of science, technology, engineering, or mathematics (STEM) might use the NIW to obtain a permanent residency.

In general employment-based sponsorship, an employer seeking to hire a noncitizen must obtain a Permanent Labor Certification from the Department of Labor (DOL) that shows there are no qualified, willing, and able U.S. workers for the position they are seeking to fill, and that their employment will not adversely affect similarly employed U.S. workers. But with NIW this can be omitted.

The benefit of NIW is that the foreign national may file the request as a self-petitioner – there is no requirement to have a job offer from a U.S. employer. This can speed up the process of obtaining permanent residency, as the Labor Certification can add around 1.5-2 years to the whole process. It also provides a freedom to the beneficiary to seek self-employment, or employment with multiple employers in furtherance of their endeavor.

The person seeking a National Interest Waiver needs to show evidence of an advanced degree or exceptional ability and must also pass the three-prong test that USCIS uses to determine, in its discretion, whether it is in the national interest to waive the requirement of a job offer, and labor certification. 

The specific evidentiary considerations for individuals with advanced degrees in STEM fields are included in the policy guidance, however, these considerations apply also in non-STEM cases where the petitioner demonstrates that such considerations are applicable. The three factors USCIS considers for a NIW are:

1. If the person’s proposed endeavor has both substantial merit and national importance;
2. If the person is well positioned to advance the proposed endeavor; and
3. If it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

Proposed endeavor has both substantial merit and national importance

With respect to the first factor, the evidence must show that the proposed endeavor has both substantial merit and national importance. Many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance. It is worth noting that the guidance explicitly states that, while proposed classroom teaching activities in STEM, for example, may have substantial merit in relation to U.S. educational interests, such activities, by themselves, generally are not indicative of an impact in the field of STEM education more broadly, and therefore generally would not establish their national importance.

As to the critical and emerging technologies (CET), the administration publishes a list of advanced technologies that are potentially significant to national security. It also clarifies what is understood as national security objectives: protect the security of the American people, expand economic prosperity and opportunity, and realize and defend democratic values. The updated CET list includes:

• Advanced Computing
• Advanced Engineering Materials
• Advanced Gas Turbine Engine Technologies
• Advanced Manufacturing
• Advanced and Networked Sensing and Signature Management
• Advanced Nuclear Energy Technologies
• Artificial Intelligence
• Autonomous Systems and Robotics
• Biotechnologies
• Communication and Networking Technologies
• Directed Energy
• Financial Technologies
• Human-Machine Interfaces
• Hypersonics
• Networked Sensors and Sensing
• Quantum Information Technologies
• Renewable Energy Generation and Storage
• Semiconductors and MicroelectronicsSpace Technologies and Systems

The list, along with subfields, is available at the White House website.

Person is well positioned to advance the proposed endeavor

As to the second prong, it must be shown  that the foreign national’s education and skillset are relevant to whether the individual is well positioned to advance the endeavor. The government considers an advanced degree, particularly a Ph.D. (Doctor of Philosophy), in a STEM field tied to the proposed endeavor and related to work important to U.S. competitiveness or national security, an especially positive factor to be considered along with other evidence for purposes of the assessment under the second prong. Foreign Nationals with a Ph.D. in a STEM field, but also certain other persons with advanced STEM degrees (i.e. Master’s degrees) relating to the proposed endeavor, have scientific knowledge in a narrow STEM area since doctoral dissertations and some master’s theses concentrate on a particularized subject matter. The government will then decide whether that specific STEM area relates to the proposed endeavor. Even when the area of concentration is in a theoretical STEM area (theoretical mathematics or physics, for example), it may further U.S. competitiveness or national security. However, it should be noted that possessing a degree alone is not sufficient; additional evidence, including letters from government agencies, or quasi-governmental agencies, is crucial to demonstrate that a person is well positioned to advance the proposed endeavor.

It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirement

Lastly, with respect to the third prong, the petitioner must establish that factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification. In evaluating the third factor and whether the United States may benefit from the individual’s admission, USCIS considers the following combination of facts contained in the record to be a strong positive factor:

• The person possesses an advanced STEM degree, particularly a Ph.D.;
• The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
• The person is well positioned to advance the proposed STEM endeavor of national importance.

The potential benefits to U.S. national security or economic competitiveness, along with support from U.S. government agencies, can add significant weight to the petitioner’s case.

The 2022 guidance emphasizes the significance of letters from interested government agencies and quasi-governmental entities in the United States. While not required, such letters can be helpful evidence and, depending on the contents of the letters, can be relevant to all three factors. Specifically, letters from an interested government agency or quasi-governmental entity could prove favorable for purposes of the first factor if, for example, they establish that the agency or entity has expertise in the proposed endeavor and that the proposed STEM endeavor promises to advance a critical and emerging technology or is otherwise important for purposes of maintaining the United States’ technological prominence.

Detailed letters of government or quasi-governmental interest that provide relevant information about how well-positioned the person is to advance the endeavor are valuable for purposes of assessing the second factor. Additionally, an interested government agency or quasi-governmental entity can help explain how granting the waiver may outweigh the benefits of the job offer and labor certification requirement by explaining a particular urgency or detailing how the United States would benefit from the prospective noncitizen’s contributions, even if other U.S. workers are available.

If you have questions regarding your case or employment-based immigration pursuant to National Interest Waiver, we encourage you to contact our office via email at [email protected] or by calling (312) 855-8666 or visiting https://boruchlaw.com/schedule-a-consultation/

This is intended for general information purposes only and does not constitute legal advice. You should not act or rely on any information in this flyer without seeking the advice of a competent, licensed immigration attorney