Key Points
- USCIS has updated guidance on National Interest Waivers (NIWs) in the context of a permanent labor certification
- The guidance clarifies how NIWs can be used by STEM graduates and entrepreneurs applying for permanent residence
- The guidance also clarifies the significance of governmental and quasi-governmental entities
- The new guidance allows foreign nationals to request a waiver of labor certification or a job offer if it is in the best interest of the US
- Individuals must meet three USCIS criteria for an NIW
Overview
US Citizenship and Immigration Services (USCIS) has issued updated guidance that clarifies how National Interest Waivers (NIWs) can be used by specific individuals, including those with advanced science, technology, engineering, and math (STEM) degrees, entrepreneurs, and individuals of exceptional ability.
What are the Changes?
The new guidance issued by USCIS supports the goals of President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, which is part of the administration’s plan to improve the US immigration system and remove barriers.
Along with clarifying how STEM graduates and entrepreneurs may use NIWs, USCIS guidance clarifies the significance of letters from governmental and quasi-governmental entities and promotes effective and efficient benefits processing. Typically, employers who want to hire foreign talent must receive permanent labor certification from the Department of Labor (DOL), proving that no qualified US workers are available for the position. Hiring a foreign national for the role will not negatively affect the US workers with similar functions. However, foreign nationals may request a National Interest Waiver of a job offer and labor certification if doing so is deemed in the interest of the US.
Individuals who wish to apply for an NIW must prove that they have an advanced degree or exceptional ability. Additionally, they must meet the three factors used by USCIS to determine if the job offer requirement and the labor certification can be waived.
The three factors used by USCIS to determine if an NIW applies to an individual include:
- If the individual’s proposed endeavor demonstrates national importance and substantial merit
- The individual will likely advance the proposed endeavor
- The US would benefit by waiving the job offer and permanent labor certification requirements
Individuals who wish to apply for an NIW under the new guidance may use Form I-140, Immigrant Petition for Alien Worker.
Looking Ahead
The USCIS guidance, located in Volume 6 of the Policy Manual, is effective immediately.
