National Interest Waiver (NIW) Denied

For many exceptional foreign professionals, the EB-2 National Interest Waiver is the only way to work in the U.S. without a sponsoring employer. However, it’s not as easy to get an NIW as it may seem. If you’ve had your NIW denied or hope to avoid this, keep reading to learn about some of the more common reasons for denial and what to do next.

What is the National Interest Waiver?

The National Interest Waiver (NIW) is an additional feature that comes along with the EB-2 green card for exceptional people and advanced degree holders. It is used to waive the PERM Labor Certification requirement that most EB-2 applicants need to adhere to while petitioning.

Under normal circumstances, potential EB-2 ad EB-3 holders must first find an employer willing to sponsor them for their green card. The first step for this is to obtain a PERM Labor Certification, which requires the employer to conduct an extensive recruitment process to verify that there aren’t any qualified U.S. workers available for the position.

However, with the NIW, an EB-2 applicant is able to bypass the PERM requirement as well as the job offer requirement. This avenue is perfect for people like entrepreneurs who are their own employers and are unable to obtain a PERM.

How Can I Qualify?

To get an NIW, you need to prove to the USCIS that your enterprise or work is in the best interest of the U.S. This means that your presence in the country will need to have a positive projected impact on the U.S. economy, job market, society, culture, technology, education, health, science, or business.

You will also need to be able to prove that you are personally qualified to develop and advance your enterprise. For this, the USCIS will be looking for things such as relevant education, work history, past successes, current progress, and a solid business plan. Note that you do not need to prove that your enterprise will be successful, only that you have the ability to make it so.

In the end, you need to demonstrate the U.S. would benefit from waiving the PERM requirement for you rather than enforcing it. This is called benefitting “on balance” and may be the difference between success and an NIW denial.

Common Reasons for NIW Denial

If you have already received your NIW denial, then the USCIS has enclosed the reason for that denial in your letter. However, if you are in the process of petitioning for your EB-2 and want to avoid getting your NIW denied, keep these common denial reasons in mind as you file.

Filing To Much Evidence

Yes, it may seem counter-intuitive, but the USCIS does not want to see hundreds of pages supporting your qualifications. Many people choose to send excessive documentation instead of a few select examples that demonstrate your qualifications.

This is problematic when you consider the fact that the USCIS has a limited amount of time to spend on each petition. If yours is bogged down with hours and hours of reading material for the examiners, you will be taking time away from the other petitions. Rather than do this, the examiners are likely to go to a certain point and adjudicate your petition when the time runs out. This often ends in having your NIW denied.

Instead, you should make sure that the few documents you do send are well-crafted and designed to convince the examiner that you and your enterprise have the potential to succeed.

Underestimating the Power of Advocacy

Advocacy, or the way that the law can be argued in support of your case, is one of the most important factors in an NIW case. If a petition is mediocre, yet has good advocacy, it has a greater chance of approval than a solid petition with poor advocacy.

Your advocacy should be presented in the cover letter. You need to find the balance between having a laboriously long argument and not presenting your arguments enough. This will ensure that the examiner assigned to your petition is educated about your case without bogging the argument down with unnecessary details.

This means that simply stating solid evidence will not be enough to prevent an NIW denial. You will need to use that evidence to argue your case in accordance with the laws and regulations surrounding your case. To do this well, it is advisable to hire an immigration attorney rather than attempt to become an overnight expert in immigration law.

Lack of Acceptable Reference Letters

Too many people have their NIW denied due to the fact that their expert reference letters are not well-crafted. Each letter should clearly demonstrate the following:

• That the author is a legitimate expert in your field
• That all of the information in the letter is true. The author must show how he or she came to know this information.
• That the author’s opinion has a significant contribution to the case

You Got Your NIW Denied: Now What?

Motion

If you have new evidence to present or the circumstances surrounding your case have changed, you can make a motion to reopen your case. This is a request to have the examiner take a second look at your case with the new evidence or circumstances in mind.

You can also make a motion to reconsider if the new information is legally related. This means that you and your attorney must determine that the examiner’s decision was incorrect and prove it to the examiner him/herself.

Appealing

If you and your attorney feel as though the decision was wrongfully or fraudulently made, you can choose to appeal the decision with the Administrative Appeals Office (AAO). This will give a third party the opportunity to overturn the decision of the adjudicating officer.

You should find information on how to appeal in your denial letter. On average, you will have a 30-day window to appeal the decision after it has been made. The examiner who made the decision will view your appeal and determine if the new evidence or advocacy presented calls for the case to be reopened.

Unfortunately, according to a report from the USCIS, the AAO tends to uphold the decision of the adjudicating officer far more often than not. In a five-year period, the AAO dismissed 443 EB-2 NIW cases while only sustaining 25. With an average of only five approvals each year, the chances of having the adjudicating officer’s decision overturned are slim.

Find an Alternate Route

It may not seem ideal, but you may want to consider finding a different way to immigrate to the U.S. If you’re interested in opening your own practice or starting your own business, there are several nonimmigrant visas that would allow you to do this such as the E-1, E-2, L-1A and even the H-1B visa.

Once under nonimmigrant status, you will be able to apply for green card provided that you meet the requirements. The other employment-based green cards that do not require a PERM Labor Certification are the EB-1 for extraordinary people and the EB-5 for investors. Work with your immigration attorney to see how you can continue your practice or business through an alternate route.