The Biden administration introduced new guidance in early 2022 that clarified and provided further information about NIW eligibility for advanced science, technology, engineering and math (STEM) degree holders. The new guidance was published in Volume 6, Part F, Chapter 5 of the United States Citizenship and Immigration Services (USCIS) Policy Manual and significantly affects qualified foreign nationals.
We spoke with Garfinkel Immigration Law Firm Partner William R. Hummel this week about the updated guidance and its impacts on STEM graduates. He explained the benefits of the NIW, eligibility criteria, the associated three-prong test and more in the interview below.
What is a National Interest Waiver (NIW)?
The National Interest Waiver is a subcategory of the EB-2 green card category that allows a foreign national to bypass the traditional permanent labor certification and job offer requirement for the employment-based green card process.
NIWs are available for foreign nationals whose continued employment in the United States is determined to be in the national interest.
What was the new National Interest Waiver guidance issued by the Biden administration related to STEM graduates?
The National Interest Waiver guidance was announced as part of President Biden’s executive order to remove barriers to the legal immigration system.
Specifically, the updated guidance clarified that almost all STEM graduates can be eligible, or will soon be eligible, for an NIW, depending on their level of degree and professional experience. This provides a pathway to permanent residency, and ultimately citizenship, for more qualified foreign nationals that may not have been available previously.
In particular, this guidance was issued because USCIS said it recognized the importance of progress in the STEM fields, especially in critical and emerging technologies. In their announcement, USCIS specifically mentioned the importance of STEM and its contribution to American competitiveness.
Who is eligible to apply for a National Interest Waiver because of the new guidance?
The guidance did not officially change eligibility for a National Interest Waiver. Foreign nationals have always been eligible for an NIW if they posses an advanced degree or exceptional ability. But this guidance specially clarified that having a STEM advanced degree is an “especially positive factor” for consideration in an NIW decision.
The NIW is a discretionary green card category: USCIS waives the labor certification at its discretion. So, they look at the positive factors that outweigh the normal requirement for labor certification.
Because the U.S. government has recognized the importance of STEM and the shortage of STEM workers, having an advanced STEM degree, in and of itself, is a positive factor that USCIS weighs in determining how a foreign national may contribute to their field in a manner that serves the national interests of the U.S.
Do the dates in the Visa Bulletin still apply to foreign nationals who receive a National Interest Waiver?
The priority and cutoff dates in the Visa Bulletin still apply to foreign nationals who receive a National Interest Wavier. Those with approved National Interest Waivers must monitor the Visa Bulletin under the EB-2 employment-based green card preference category.
There is currently a backlog in that category. In the October 2023 Visa Bulletin, the wait is about a year. But, historically, the EB-2 category has been faster than other priority groups.
Getting a National Interest Waiver may be faster than the several other green card categories, in general, because it skips the whole first part of the green card process. So, it is a way for a foreign national to get to a more secure place in their green-card status, quicker.
What is the three-prong test and how does it relate to the National Interest Waiver?
Foreign nationals applying for a National Interest Waiver must demonstrate their employment is in the national interest and that it would benefit the U.S. to a greater degree than other qualified U.S. workers.
This is proven through a three-prong test, which was created by The Department of Homeland Security (DHS).
The first prong is the proposed endeavor: The foreign national’s proposed job, either with a company or self-employed, must have substantial merit and be nationally important. USCIS looks at what the proposed job is and whether it is going to affect the U.S. as a whole.
For this, I always tell people that their job has to affect more than their local location. Does the work that they’re doing reverberate around the United States? It can be indirect, but it does have to have a reverberation around the United States. That’s the proposed job, so it is looking indirectly at the job description itself.
The second prong is if the individual is well positioned to advance the proposed endeavor. That’s where the person’s qualifications are examined: Do they have the skills, the background, the experience that they’d likely move this field forward?
There’s no set criteria, but for example, USICS may look at factor such as, “has the foreign national been published, have they done research, have they won awards?” There’s not one criteria, but they look at everything in totality. USCIS generally considers a history of success as a predictor of future success for a foreign national. The policy manual even mentions that if the foreign national is working for a startup, that if other people are willing to fund their research, that’s an indication they are likely to succeed.
The second prong really focuses on the employee and their background. Are they personally, academically and in every other way in a good position to advance their field?
The last prong is that “on the balance, it would be beneficial to the U.S. to waive the labor certification requirement.” Basically, this is the discretionary part, in which USCIS determines that letting the foreign national skip the first step of the traditional employment-based green card outweighs the priority of U.S. workers. The factors that go into this decision are usually the impracticality of the labor certification, the benefits that the foreign national will likely bring to the U.S., and the urgency of the need for employment and critical skill. If it is something that the government has said is critically urgent, that is taken into consideration, as well.
In our office, one thing we argue is that the continued delays in the PERM-based green card process is a factor that should weigh in favor of granting a National Interest Waiver, given the critical need the government has specified for STEM graduates.
What are the biggest benefits of the new guidance related to STEM graduates?
It clarified that those with advanced degrees in the STEM field will be looked upon favorably when applying for a National Interest Waiver.
It is still not enough that a foreign national simply has an advanced degree in a STEM field. They must also still demonstrate that they have been successful and will be successful in the future.
But, some people believed, historically, that they needed to have 10-plus publications or a patent in order to apply for a National Interest Waiver. This guidance has helped make clear that having an advanced degree and a less extensive track record of success may be enough to apply for an NIW.
How can foreign nationals learn more about the National Interest Waiver?
Foreign nationals can learn more about the National Interest Waiver by contacting the attorneys at Garfinkel Immigration Law Firm by phone at 704-442-8000 or via the website.