U.S. Citizenship and Immigration Services (USCIS) announced an update to guidance adjudicating requests for the “National Interest Waiver.” This update provides guidance on job offers and labor certification requirements for certain advanced degree professionals of exceptional ability. The update clarifies the unique considerations for individuals with advanced degrees in Science, Technology, Engineering, and Math (STEM) fields and entrepreneurs.

What is a National Interest Waiver?

Employers can file an Immigrant Petition for Alien Workers (Form I-140) for individuals of exceptional ability or members of professions with an advanced degree. This process generally requires the employer to receive a labor certification from the US Department of Labor. The certificate is used to prove that there are no qualified U.S. workers for a position being sought and employment of the proposed beneficiary would not adversely affect similarly employed U.S. workers.

The Immigration and Nationality Act however allows for requests to waive these labor certification requirements, known as National Interest Waivers. National Interest Waivers allow noncitizens to seek waivers for these labor certification requirements because it is the interest of the United States. Although specific professions are not codified by statute, national interest waivers generally are granted for those who demonstrate exceptional ability in the sciences, arts, or business and whose employment in the United States would greatly benefit the nation.

The general requirements of a National Interest Waiver include three-prong factors:

  • First, the proposed endeavor has both substantial merit and national importance.
  • Second, the beneficiary/self-petitioner is well-positioned to advance the proposed endeavor.
  • Third, It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

Updates at a Glance

USCIS updated its guidance on the policies used to determine national interest waivers for those in STEM fields. Highlighted, these updates include:

  • Clarification on how those in the STEM fields can use the national interest waiver as well as the significance of letters from governmental and quasi-governmental entities.
  • Expansions on the discussion in Matter of Dhanasar. The Matter of Dhanasar found that after eligibility for EB-2 classification has been established, USCIS may grant a National Interest Waiver if the petitioner demonstrates, by a preponderance of the evidence, that the foreign national’s proposed endeavor has both substantial merit and national importance, and how the framework can be used by entrepreneurs.
  • Incorporating Matter of O-1A, Inc. explaining that USCIS considers the date of a provisional degree certificate for the purposes of calculating post-baccalaureate experience.

Specific Considerations for Persons with Advanced Degrees in STEM Fields

  • Policy Update Guidance for USCIS officers to review a list of critical and emerging technology subfields published by the Executive Office of The President, by the National Science and Technology Council, or the National Security Council.
  • All cases must demonstrate that a STEM endeavor has both substantial merit and national importance and have a sufficiently broad potential implication to demonstrate national importance.
    • In educational settings, a proposed classroom teaching activity in STEM may have substantial merit in relation to U.S. educational interest such as activities, but these endeavors may have more of an effect on STEM education more broadly and therefore would not generally establish national importance.
  • USCIS will consider an advanced degree, especially a Doctor of Philosophy (Ph.D.) in a STEM field tied to the proposed endeavor and related to work furthering a critical emerging technology or other STEM areas important to U.S. competitiveness or national security.
  • Persons with a Ph.D. in a STEM field as well as certain other individuals with advanced STEM degrees relating to the proposed endeavor, and those who have scientific knowledge in a narrow area of STEM – Officers should consider whether the specific STEM area relates to the proposed endeavor. Even if it is in a theoretical field in STEM such as theoretical mathematics or physics, such endeavors may still further U.S. competitiveness or national security.
  • USCIS will place more value where endeavors have the potential to support U.S. national security or enhance U.S. economic competitiveness or when the petition is supported by letters from interested U.S. government agencies.

The Role of Governmental and Quasi-Governmental Entities

  • USCIS urges that letters from interested government agencies or quasi-government entities in the United States such as federally funded research programs or development centers are helpful evidence.
  • Letters from an interested government agency or quasi-governmental entity could prove favorable for purposes of the first prong 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 prong.
  • Finally, 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.

Special Guidance for Entrepreneurs

USCIS clarified that undertaking an endeavor as an entrepreneur may carry a different timeline than those in more technical fields such as STEM. Entrepreneurs may have a wide variety of backgrounds, some being atypical of a traditional educational career path. Start-ups may, for example, be different from one another, and therefore, there is no specific structure of how these start-ups are made.

Reviewing these notions, USCIS provides clarity in that the entrepreneur petitioner may submit the following types of evidence to establish that the endeavor has substantial merit and national importance, that the petitioner is well-positioned to advance the endeavor, and that, on balance, it would be beneficial to waive the job offer and thus labor certification requirements.

  • Evidence of Ownership and Role in a U.S. Based Entity
  • Degrees, Certifications, Licenses, and Letters of Experience
  • Investments
  • Incubator or Accelerator Participation
  • Awards or Grants
  • Intellectual Property
  • Revenue Generation, Growth in Revenue, and Job Creation
  • Letters and Other Statements from Third Parties such as related government entities, outside investors, or established business associations with knowledge of:
    • The research, products, or services developed by the petitioner, the petitioner’s entity, or both; or the petitioner’s knowledge, skills, or
    • Experience that would advance the proposed endeavor.

In all cases, the officer reviewing must consider the totality of the circumstances to determine whether each of the three prongs is established by a preponderance of the evidence.

If you have questions about the National Interest Waiver or any other immigration-related questions, contact us at ILBSG. We closely monitor ongoing updates and policy clarifications to ensure our clients get the right advice to get the outcome they need.

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