Frequently Asked Questions about NIW

Q: What is USCIS?

A: USCIS stands for U.S. Citizenship and Immigration Services, the federal agency responsible for matters involving aliens in the United States. USCIS has jurisdiction over immigrant petitions, such as the NIW. Prior to March 2003, the USCIS was called the Immigration and Naturalization Service, INS. For a brief period in the early 2000s, it was known as the Bureau of Citizenship and Immigration Services, or BCIS. It is also sometimes simply called CIS. For purposes of this website, we use the current accepted name of U.S. Citizenship and Immigration Services or USCIS.

Q: What is a National Interest Waiver (NIW)?

A: A National Interest Waiver (NIW) petition is part of the employment-based, second-preference immigration category that requests that the otherwise necessary U.S. job offer and labor certification requirements be waived for the sake of the "national interest."

Q: What are the minimum requirements for an NIW?

A: Since this is an employment-based, second-preference (EB-2) petition, the beneficiary of an NIW must first qualify as either an "Advanced Degree Professional" or an "Alien of Exceptional Ability."

Q: What is an Advanced Degree Professional?

A: The term "Advanced Degree Professional" means that the beneficiary either has an advanced degree (M.A., M.S., M.E., M.D., or Ph.D.) or its foreign equivalent, and is working in an area that requires at least a bachelor's degree or is traditionally regarded as a profession requiring a high level of postsecondary education, such as a lawyer, doctor, architect, engineer, or professor. In some cases, a bachelor's degree plus five years or progressive experience in a professional occupation may satisfy the requirement of an "advanced degree.”
Please keep in mind that applicants holding an advanced degree from a U.S. university or foreign equivalent do not need to additionally prove that they qualify as an "Alien of Exceptional Ability."

Q: What is an Alien of Exceptional Ability?

A: According to USCIS regulations, this designation refers to an alien who demonstrates exceptional ability in the sciences, arts, or business, satisfying at least three of the following conditions:

  1. An official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability

  2. Evidence in the form of letter(s) from current or former employer(s) showing at least ten years of full-time professional experience 

  3. A license to practice the profession or certification for a particular profession or occupation

  4. Evidence that the alien has commanded a salary or other remuneration for services reserved for those with exceptional ability

  5. Evidence of membership in professional associations

  6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

Q: To apply for an NIW, do I have to be both an Advanced Degree Professional and an Alien of Exceptional Ability?

A: No, an alien applicant needs only to satisfy either the "Advanced Degree Professional" or the "Exceptional Ability" requirement. Proof of both is unnecessary. Please note that qualifying as either one fulfills the minimum requirement for the EB-2 category and that fulfilling either requirement, or even both, does not automatically guarantee a successful NIW case.

Q: What documents are required for NIW petitions?

A: Documents for an NIW petition consist of Form I-140 and the Form ETA-750B. Additionally, documentation showing that the beneficiary is an "Advanced Degree Professional" or an “Exceptional Ability Alien” should be provided. There are no other specifically required documents, according to USCIS regulations. Letters of recommendation from prominent members of your field as well as a strong petition letter drafted by an experienced immigration attorney are generally recommended. Note, however, that satisfying these basic documentary requirements only helps ensure a candidate's petition will be reviewed; it does not guarantee a successful case.

Q: What is the NIW standard under current U.S. immigration law?

A: The Immigration Act of 1990 allows the labor certification requirement to be waived for "Advanced Degree Professionals" or persons of "Exceptional Ability" whose work would substantially benefit the national interests of the U.S. To read the relevant statute in full, refer to 8 U.S.C. § 1153(b)(i). (If you read the statue, you’ll see it refers to the Attorney General. When this law was passed, such immigration petitions were handled by the Immigration and Naturalization Service (INS), which was then a part of the U.S. Department of Justice. The Attorney General is at the helm of the Justice Department, hence authority residing with the Attorney General. After September 11 and the creation of the Department of Homeland Security (DHS), these responsibilities and powers of the Attorney General were transferred to DHS. INS, which fell under DHS, thereafter became USCIS.)

Q: How does USCIS determine its decisions regarding NIW cases?

A: The following three factors are considered in determining whether an alien will substantially benefit the national interests of the United States:

  1. that the applicant’s proposed endeavor has both substantial merit and national importance;

  2. that the applicant is well-positioned to advance the proposed endeavor; and

  3. that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The labor certification process exists to protect the jobs and job opportunities of U.S. workers having the same minimum qualifications as an alien seeking employment. The petitioner, whether the employer or the alien him- or herself, must establish that the beneficiary will serve national interests to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Before 1998, USCIS (then called INS) took a more flexible adjudicating perspective when deciding NIW cases. A decision by the Administrative Appeals Office (AAO) on August 7, 1998, “New York State Department of Transportation” (NYSDOT), tightened the standard applied to NIW cases. Recently, in Matter of Dhanasar, decided on December 27, 2016, USCIS changed its NYSDOT standard for adjudicating NIW cases to make it clearer and less ambiguous. Thus, the Dhanasar framework has replaced the NYSDOT precedent and now provides the framework used to adjudicate NIW cases.

Q: What distinguishes a successful NIW application from an unsuccessful one?

A: There is no specific metric or set of criteria that distinguishes a successful NIW petition from an unsuccessful one. The burden of proof is on the petitioner and his or her counsel in terms of providing sufficient evidence to show that he or she meets the requirements for an NIW. As a general note, in our experience, the stronger the letters of recommendation and attorney petition letter presented, the greater the chances of approval.

Q: How important are expert skills or a unique background?

A: It is not sufficient to state that the alien possesses expert skills or a unique background. Regardless of the alien's unique experience or skills, the benefit the alien's skills or background would provide the U.S. must convincingly outweigh the inherent national interest in protecting U.S. workers through the labor certification process.

Q: Who has the burden of proof in showing that a petitioner would benefit U.S. national interest?

A: The burden of proof in NIW cases rests solely with the petitioner and his or her attorney.

Q: Can a Ph.D. student apply for an NIW?

A: Yes. Since no job offer is required, a Ph.D. student may qualify for an NIW petition. Here’s a couple of examples to help clarify this question.

Example 1: 

Jamilah has an M.S. degree in psychology but has yet to complete a Ph.D. program, as she has been working full-time in the Division of Behavioral and Cognitive Sciences at the National Science Foundation since she graduated.

Can Jamilah apply for an NIW petition?

Yes, an M.S. in psychology meets the minimum requirements of an "Advanced Degree Professional.”

Example 2:

Roger does not have a degree from a U.S. institution, but he did obtain an M.A. in pharmacology from a Chinese university. He currently has no plans to enroll in an academic program in the U.S.

Would Roger’s foreign advanced degree be acceptable for an NIW petition?

Yes, a foreign advanced degree, if determined to be the equivalent to a U.S. advanced degree, would meet the minimum requirements of an “Advanced Degree Professional.”

Q: How many publications are required to meet minimum NIW requirements?

A: There is no minimum number of publications required. USCIS decides each petition on a case-by-case basis.

Q: Would evidence of a labor shortage in the NIW beneficiary's profession be a factor in an application?

A: No. USCIS explicitly modified the NIW rules set forth in NYSDOT in order to avoid confusion about the need to submit evidence related to the labor market. Its new Dhanasar decision avoids such language, as the NIW is specifically intended to waive the labor certification process required for the EB-2 visa.

Q: Besides an NIW application, what other avenues exist for me to apply for an employment-based immigration visa without a labor certification?

A: If you qualify for an employment-based, first-preference petition, you would not need a labor certification. Further, within this first-preference category, if you qualify as an Alien of Extraordinary Ability, you additionally would not need a job offer. For more information on the EB-1 preference category, please click here.

Q: Do I need to live in the U.S. in order to apply for an NIW?

A: No, an alien may reside either in the U.S. or abroad. That said, your NIW claim will be more difficult to establish if you apply while living outside the U.S.

Q: What is a letter of recommendation in an NIW petition?

A: This refers to a letter written by an expert in the alien's field or some otherwise authoritative person in an allied or supported field. The letter discusses the abilities and accomplishments of the alien seeking an NIW, as well as the importance of the alien's work to the national interest. Letters of recommendation are an important component of an NIW application.

Q: Whom should I contact to obtain letters of recommendation?

A: Letters of recommendation can be obtained from various sources. Generally, you should obtain recommendations from experts in your field. In their letters, they should demonstrate how you have made a significant contribution to your field and have achieved a degree of recognition.

Other possible recommenders include top-level management figures of prospective companies making use of your work, or current or former employers. We recommend that you try to include letters from individuals who have not worked with you personally, but who are still aware of your achievements; such letters are generally given more weight than those written by people who know you well.

Q: How many letters of recommendation would you say are needed for a successful NIW petition?

A: There is no minimum number of letters of recommendation required. Generally, we include five to seven letters of recommendation in our clients’ NIW applications, but the most important consideration is always quality, not quantity.

Q: What do you mean by a “strong” or “compelling” letter of recommendation?

A: For an NIW petition, a “strong” or “compelling” recommendation letter is one that enthusiastically extols the alien's abilities, talents, and accomplishments, and additionally describes the prospective benefits that will accrue to U.S. national interests as a result of the alien's work. Because the success of the petition is to a significant degree dependent on how such issues are presented in recommendation letters, having an experienced attorney assist you in applying for an NIW can be an essential factor.

Q: Does your firm provide sample letters of recommendation?

A: Yes, we offer our clients access to our database of relevant sample recommendation letters for their use as a reference. Our database includes letters from a wide range of professional areas, including fields such as chemistry, physics, the arts, medical research, petroleum engineering, and music.

Q: If my boss is not willing to write a strong letter of recommendation for me, is it still possible to get my NIW petition approved?

A: No single letter is essential to getting your NIW approved, and that includes a strong letter from your current employer. That said, if your employer can write you such a letter, you should include it. Assuming your boss can’t or won’t, if you obtain letters of recommendation from other experts to support your NIW claim, your case may be successful.

Q: Could an artist or musician qualify for an NIW?

A: Yes. Artists and musicians can apply for an NIW.

Q: If I do not have any published articles in journals in my field, can I still apply for an NIW?

A: Yes. There is no specific requirement of having published articles in order to apply for an NIW or get one approved. However, having published articles could make an NIW petition stronger.

Q: If I do not have any awards relevant to my field, can I still apply for an NIW?

A: Yes. There is no specific requirement that you need to have awards in order to apply for an NIW or get one approved. However, having awards could make an NIW petition stronger.

Q: If I am not a member of a professional organization in my field, can I still apply for an NIW?

A: Yes. There is no specific requirement that you need to be a member of any professional organization, association, or society in order to apply for an NIW or get one approved. However, being a member of a professional organization, association, or society could make an NIW petition stronger.

Q: I am not a member of any professional organizations in my field, but I’m thinking of joining one by paying a membership fee. Should I join such professional associations now in order to increase my chances of approval for an NIW?

A: Not necessarily. Being a member of a professional organization, association, or society can help a petition, provided that the organization's membership is restricted to those who somehow distinguish themselves in their field. If the professional association is relatively easy to join (for example, by paying a nominal fee), it may not be a positive factor in your NIW case.

Q: I am considering applying for an EB-1 visa. Can I also apply for an NIW?

A: Yes. You are not bound by only one immigrant petition (Form I-140). You are allowed to petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether USCIS will approve any given case.

Q: If I have already applied under another classification, is there any reason for me to also apply for an NIW?

A: Yes. You may want to additionally apply for an NIW to improve your chances of getting a petition approved. It is impossible to predict whether USCIS will approve any given case. If the other case is eventually denied, you may still get your NIW petition approved. In addition, some types of petitions require an employer sponsor, and anyone approved under such a petition would be required to work for that employer for at least some time after the associated petition is approved. An NIW requires no employer sponsor, so an alien approved for an NIW is not bound to any particular job.

Q: If I apply for an EB-1 and an NIW at the same time, will one application negatively affect the other?

A: No, they are unrelated. One will not affect the other, either positively or negatively.

Q: I’m choosing between an NIW and an EB-1A. Which petition would you recommend I apply for?

A: You should always keep in mind that filing both an NIW and an EB-1A petition concurrently is an option. However, each petition is different. While overall approval rates for EB-1A petitions tend to be lower, if your case is clearly strong enough to go that route, your chances of success are higher by applying for EB-1A. However, if your case is not as distinguished as successful EB-1A cases should be, an NIW petition would be a more realistic approach.

Q: If I have a labor certification pending, can I also apply for an NIW?

A: Yes. U.S. Department of Labor (DOL) handles applications for labor certification, whereas USCIS, which is a part of U.S. Department of Homeland Security (DHS), handles NIW petitions. If your labor certification is ultimately denied, then you still have a chance of getting an NIW application approved. Either way, you would need to petition for an adjustment of status or apply for an immigrant visa. Note that, with respect to a labor certification, you are required to petition under the employer who sought the labor certification, and you would be required to work for that employer for at least some time after your immigrant petition (Form I-140) is approved. With an NIW, you are not bound to any particular employer.

Q: If I have been denied a labor certification, can I still petition for an NIW?

A: Yes, assuming you would qualify for an NIW. The standards for NIWs and labor certifications are very different. A labor certification is based on a lack of available U.S. workers with minimum qualifications for a particular job. In contrast, an NIW is based on the applicant’s proving that he or she will be more productive and better able to serve national interests than would U.S. workers with minimum qualifications. In other words, there could be a multitude of U.S. workers with minimum qualifications available for a particular job, but the alien worker is much better at said job than those with minimum qualifications are. In such a situation, a labor certification would likely be denied, while an NIW has a better chance at ultimately being approved.

Q: What is a "Request for Additional Evidence?”

A: Sometimes USCIS is not convinced that the alien seeking an NIW has met the burden to prove that he or she qualifies for an NIW. In this event, the adjudicating officer will typically submit a "Request for Additional Evidence" (RFE), seeking certain forms of evidence that USCIS found lacking. At our firm, we take pains to present such a strong case on your behalf that an RFE isn’t expected. Despite anyone’s best efforts, though, there is no way to predict how a particular USCIS officer reviewing a particular case will respond, and sometimes even the strongest cases receive an RFE. In our experience responding to RFEs, our cases are usually approved after we prepare and submit the additional evidence.

Q: You have reviewed my resume and know my background. What do you think are my chances of getting an NIW petition approved?

A: Your chances of success in an NIW petition are not determined solely by your resume and background. Letters of recommendation from various sources play an important role in supporting an NIW claim. Furthermore, a well-drafted petition letter from your attorney will significantly strengthen your case. Without analyzing all the components of your petition, we can’t estimate the probability you will win approval. And even with your full petition, it isn’t possible to gauge your chances with certainty, as the ultimate decision rests with USCIS.

Q: Can the letters of recommendation included in an EB-1 petition be used for an NIW petition?

A: No. EB-1 letters of recommendation will not be effective in an NIW petition since the two types of petition have different criteria.

Q: If I have filed my NIW, when is my priority date?

A: Your priority date is the date USCIS receives your NIW petition.

Q: Can I apply for a change of status from F-1 to NIW status?

A: Yes. Because the NIW does not require a specific offer of employment, many students choose to petition for an NIW.

Q: I am currently in J-1 status and subject to the two-year home country residency requirement. Can I still apply for an NIW?

A: Yes. However, you will need to obtain either a J-1 waiver or satisfy the residency requirement before you can adjust your status to permanent resident or acquire an immigrant visa.

Q: I am currently in J-1 status and subject to the two-year home country residency requirement. If I apply for an NIW and get it approved, is my J-1 home country requirement waived?

A: No, a J-1 waiver and an NIW are two different things. A J-1 waiver is an application to waive the two-year home country residency requirement. An NIW is a waiver of the job offer and labor certification requirements in an EB-2 immigrant petition. Even if your NIW is approved, you are still subject to the two-year requirement. You need to obtain a J-1 waiver or satisfy the two-year home country residency requirement before you can adjust your status to permanent resident.

Q: If my NIW is approved, can I adjust my status to that of permanent resident?

A: Generally, yes. It depends on whether an immigrant visa is available. For the latest visa bulletin, click here.

Q: Can I apply for an adjustment of status and file an NIW petition concurrently?

A: Yes, and if your NIW is approved, you would have the advantage of a quicker timeframe to adjust your status.

Q: How many NIW cases has your firm handled?

A: Our firm has successfully helped many clients obtain NIW approvals. In the past twenty years, we have handled more than five thousand NIW petitions, and in recent years, we have averaged more than 300 NIW approvals annually.

Q: Can your firm guarantee that my case will be successful?

A: No, no attorney can promise that your case will result in a successful outcome. However, we can promise you that we will take on your case as if it were our own, giving it the highest priority, and offering you a first-rate product.

Q: After my NIW is approved, do I need to remain with my current employer?

A: No, provided that you are the petitioner in the NIW petition.

Q: After my NIW is approved, am I required to remain in the same field as my NIW application indicated?

A: Yes, you are required to continue to work in the field indicated in your NIW petition, since you argued that doing so would be beneficial to U.S. national interests. If you venture into another area, USCIS may deny your application to adjust status (Form I-485) or subsequently revoke your permanent residency.

Q: What are the attorney's fees for an NIW petition?

A: Contact us to find out how much our services cost. While our attorney's fees are admittedly not the lowest available, our fees are warranted. By retaining Zhang & Associates, you can be assured of high-quality, efficient work that will greatly improve your chances for success. In our view, all cases are high-priority. Our seasoned attorneys will use their experience, expertise, and teamwork in the hope of increasing the probability for your NIW petition's approval.

Q: What are the differences between an NIW and an EB-1?

A: While there are many similarities between an alien who qualifies for an NIW petition and one who would be eligible for an EB-1A or EB-1B petition, the requirements to qualify under each category are considerably distinct. In an NIW petition, aliens must first show that they are highly qualified in their fields, i.e. "Advanced Degree Professional" or "Alien of Exceptional Ability.” Applicants also need to demonstrate that they have the capacity to contribute to the national interests of the U.S. to a greater degree than could other highly qualified individuals in the field. Thus, waiving the standard job offer and labor certification requirements would be warranted. In contrast, a person who qualifies under the EB-1 category must show that he or she is an outstanding individual in, and often at the top of, his or her field. According to U.S. immigration law, a top or outstanding individual is not required to obtain labor certification in order to earn employment-based permanent residency. (For more information about EB-1 petitions, please click here.)

Q: At which service center should I file my NIW petition?

A: All Form I-140s for NIW cases should be filed with the Dallas LockBox.

Q: Where does your firm file most of your clients’ NIW petitions?

A: The Texas Service Center receives the largest portion of our client's cases; however, we have filed successful cases at different centers. Since immigration law is federal, our knowledge is not specific to any particular region, state, or service center. We therefore welcome clients from all regions of the U.S. and, indeed, from around the world.

Q: If I retain your firm, what do I need to do?

A: If you decide to retain us to complete and file your NIW petition, you’ll first need to review a copy of our NIW contract, sign it, and then send it to us, along with the initial attorney's fee. Once we receive the signed, completed contract and payment, we will begin work on your case. To review our NIW contract, click here.

Q: If I retain your firm, how soon can you file my NIW?

A: It depends on how long it takes to gather all the necessary supporting evidence, including letters of recommendation. After you have provided all the required documentation, it usually takes us about one week to complete the petition and prepare it for filing.

Q: How long does it take for USCIS to process NIW cases?

A: Generally, it takes USCIS between six months and one year to process an NIW case, but the processing time for any given case can vary considerably. For more information on processing times, click here.

Q: Who will handle my case if retain your firm?

A: Our attorneys directly handle our clients’ cases, from start to finish, by preparing petition letters, contacting clients, appearing in court if needed, and following up on pending cases. Because of how intimately involved our attorneys are in all stages of our clients’ cases, we have more attorneys than clerks at our offices nationwide. Our law clerks’ main objective is to help attorneys prepare clients’ packages. Additionally, each client’s case is not only handled by an attorney, but it will also be reviewed by one of our senior attorneys before submission to USCIS.

Q: If I retain your firm, can I select a particular lawyer to handle my case?

A: That shouldn’t be necessary, and here’s why: all attorneys at Zhang & Associates are experienced lawyers with high rates of success. Although your case may be assigned to a particular attorney, other staff will work on and examine your case as it proceeds. At our firm, we encourage our staff to share thoughts and information in order to enhance and strengthen their cases, and we ensure that all petitions are examined by a senior attorney prior to filing with USCIS to make certain we send out only accurate work of exceptional quality.

Q: I know your firm’s headquarters is in Houston, but I don’t live anywhere near Texas. Can your firm still handle my case?

A: While our firm is headquartered in Houston, we also have branch offices in Chicago, New York, Austin, Los Angeles, Palo Alto, and Seattle. But regardless of where our physical offices are, because immigration law is federal, we are still able to handle cases anywhere in the U.S. and even abroad, which we do by using the latest technology. To view where our clients are located throughout the U.S., check out this map.

Q: Will I ever need to meet with you in person as a client? 

A: No, it isn’t necessary to meet with us face to face, though we enjoy seeing our clients in person. It is seamless to communicate with us via fax, telephone, mail, e-mail, and courier (Fed-Ex, UPS, etc.).

Q: I want your firm to evaluate my case. What do I need to do?

A: To get started on your free initial evaluation, click here. You can always e-mail your resume to info@hooyou.com. Attorney Jerry Zhang or one of our attorneys will thereafter evaluate your case.

The NIW process is complex and, at times, a bit convoluted. We recommend that you seek the assistance of experienced immigration attorneys. Over the past two decades, we have successfully represented thousands of clients in their NIW cases. If you would like to contact us, please call us at (713) 771-8433 or visit us at one of our seven locations. You can also send us an e-mail at info@hooyou.com. Our superior attorneys will ensure that you receive only the highest quality of service.

Read the USCIS ruling (Matter of Dhanasar) governing NIW here. And for more detailed information about the National Interest Waiver, including minimum requirements and USCIS policies, please click on the relevant links on this page:

Updated 03/23/17