USCIS Provides Updated Guidance for National Interest Waivers

USCIS (Designed by Freepik)
March 23, 2023

The United States Citizenship and Immigration Services (USCIS) updated its policy guidance concerning National Interest Waivers last year. This update clarifies the waiver standards and potentially relaxes them for foreign nationals with advanced degrees in STEM (science, technology, engineering, and mathematics). A National Interest Waiver (NIW) is an immigrant petition in the employment-based second preference category (EB-2).

The updated guidance intends to help attract and retain foreign graduates in STEM fields. In addition, these updates make the NIW a good option for foreign nationals with advanced STEM degrees who want to obtain permanent resident status in the United States. It can also prove beneficial for their employers.

A foreign national may self-petition for an NIW without a job offer in the United States. Otherwise, an employer may file the NIW petition for the foreign national employee. Regardless of who files the NIW petition, it will allow the petitioner to avoid going through the permanent labor certification (PERM) process with the Department of Labor. This option demonstrates that it is in the national interest of the U.S. for the foreign national to work in this country.

Under the previous standards, foreign nationals wanting an NIW had to present evidence of exceptional ability or an advanced degree. The evidence had to indicate their expertise as considerably above the typical level in the arts, business, or sciences. They also had to pass a three-pronged test established in Matter of Dhanasar. To do this, they needed to show the following:

  • The foreign national’s endeavor is of substantial merit and national importance;
  • The foreign national needs an appropriate position to advance the proposed endeavor;
  • It would benefit the United States to waive the job offer requirements and, in doing so, the labor certification.

Under the new guidance, STEM graduates must still satisfy the Matter of Dhanasar test. However, having an advanced degree will have significant weight in the three prongs of the test. Currently, the guidance favors doctoral degrees in critical and emerging technology areas. However, the USCIS has clarified that having an advanced degree is not enough to obtain an NIW waiver.

NIW petitions also qualify for premium processing, with a $2,500 fee. The USCIS will adjudicate the case within 45 calendar days with premium processing. PERM labor certifications have a processing time of up to two years. As such, eligible foreign nationals trying to get a green card could consider an NIW instead.

Employers that hire foreign nationals must complete the employment eligibility verification (Form I-9) process, as they do for all employees. However, it can prove more complicated to complete for foreign national employees due to the many documents they may present. The easiest way to ensure the correct completion of Form I-9 is to use an electronic I-9 management system. This system guides the employer through the process step-by-step and securely stores the form and any accompanying documentation.

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