National Interest Waivers

Preparing a National Interest Waiver case is similar to juggling three balls. The three balls are three criterions established by the designated precedent decision of the New York State Department of Transportation case which set the following standards for approval of these petitions:

1. The petitioner (or self-petitioner) must demonstrate that the permanent employment will be in an “area of substantial intrinsic merit.”

Arguably, no human activity which already qualifies as “employment” is so utterly useless as to qualify for no “substantial intrinsic merit” whatsoever. Basically, if one can do it, there is something to it.

2. The petitioner (or self-petitioner) must demonstrate that the proposed benefit from this employment will be “national in scope.”

Whatever the benefit from this employment is — whether it is social, economic, or even political — it must cross state lines in some shape or form. And if it does, there is no stopping it from qualifying as “national in scope.”

3. The petitioner (or self-petitioner) seeking the waiver must demonstrate that the benefit from granting the waiver will outweigh the detriment to the U.S. workers who will lose the protections inherent in the labor certification process and that the national interest in granting the waiver would be adversely affected if a labor certification were required.

The third criterion is where unsuccessful NIW filings usually “drop the ball,” so to speak. And this is where I feel it would be appropriate to mention that when it comes to juggling National Interest Waivers, I have a perfect record (knock on wood). In fact, many other lawyers specializing in employment-based immigration hire me to assist them in preparing these filings or respond to Requests for Evidence (RFEs), which are issued in the vast majority of these cases.