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On January 21, 2022, the Biden Administration announced an expansion of the National Interest Waiver path to permanent residence (green card) for certain STEM degree holders, particularly those with STEM graduate degrees.  The new policy aims to clarify how the National Interest Waiver program can be used by STEM graduates.

What is the National Interest Waiver?

Immigrants seeking to obtain permanent residence (green card) to the U.S. through employment must generally have a job offer from a U.S. employer.  In addition, the U.S. company first has to advertise the job through very specific outlets to try and find U.S. workers who meet the minimum qualifications, before it can sponsor the foreign employee.  This is generally known as the PERM process.  Through PERM, the employer starts the process with the U.S. Department of Labor (DOL) to prove it could not find a U.S. worker who meets the minimum qualifications for the position.  If DOL certifies the employer’s Foreign Labor Certification application, then the employer can petition the U.S. Citizenship and Immigration Services (USCIS) for the applicable immigrant classification for the foreign employee.

The National Interest Waiver (NIW) process gives some highly skilled foreign nationals the ability to petition for permanent residence on their own, without needing a job offer or company sponsorship.  The immigrant basically asks the government to waive the requirement for a job offer, company sponsorship, and job advertising because granting them permanent residence would be in the national interest of the U.S.  Hence the term National Interest Waiver.  In the NIW process, the employee skips the Department of Labor process entirely and petitions directly with USCIS instead.  Moreover, the employee (foreign national) can submit their own petition with USCIS, without needing an employer to do so on their behalf.

What are the eligibility criteria for the NIW?

The current legal framework for the National Interest Waiver was established through the precedent decision of Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).  We previously discussed more detailed eligibility criteria under Matter of Dhanasar after it was initially implemented and we invite you to read that analysis here.    

In short, under a NIW petition, a foreign national must show that they have a graduate degree or exceptional ability, and that their proposed endeavor meets all of the following three criteria:

1. the proposed endeavor has both substantial merit and national importance;
2. the immigrant is well positioned to advance the endeavor; and
3. on balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements.

Does the January 2022 policy change or eliminate the Dhanasar requirements?

No. The January 2022 policy update from the Biden administration does not change the standard or the three criteria required by Matter of Dhanasar.  Instead, the new policy specifically addresses how someone with a STEM degree or someone who is an entrepreneur can use the NIW process.

Prior to this January 2022 guidance, the USCIS policy did not provide too much information specifically on STEM or entrepreneurship grounds of eligibility.  The policy addressed NIW in more general terms as applicable to a wide range of fields, such as business, entrepreneurship, science, technology, culture, health, or education, without expanding too much on any of them.  This has led to inconsistent decisions from USCIS officers across the country as to the NIW qualifications.

Prior to Dhanasar, the more common element that caused NIW cases to be denied was the “national importance” element under the 1^st requirement.  Before Dhanasar, the government interpreted “national importance” to require geographical reach, which Dhanasar changed.  After Dhanasar, NIW applicants had much better success in proving national importance.  However, NIW cases after Dhanasar seem to have found a new barrier under the 2^nd criteria, where USCIS has routinely found that the foreign nationals are not well positioned enough to advance the proposed endeavor.  It is this 2^nd requirement from Dhanasar that the January 2022 policy guidance aims to correct, to explain how STEM degrees help make a foreign national well positioned to advance their endeavor.

The same January 2022 policy also clarifies how certain start-up founders and entrepreneurs can use the NIW process and what type of evidence they can use to qualify.  We discuss the entrepreneur NIW provisions in more detail here.

Is a STEM degree enough by itself to become eligible for NIW?

1. in and of itself, “is not a basis to determine that a person is well positioned to advance the proposed endeavor.”  However, under the new policy, USCIS will consider the fact that the applicant’s degree is in a STEM field (as opposed to any other field) to provide extra support to the national interest argument. 

   How does having a STEM advanced degree help in NIW cases?

   For the 1^st Dhanasar prong (substantial merit and national importance), USCIS recognizes that many NIW proposed endeavors are advancing STEM technologies and research that can have very broad implications.  Therefore, USCIS will be looking for evidence in the record showing the impact that the proposed STEM endeavor would have.

   When analyzing the 2^nd Dhanasar requirement USCIS will consider an advanced degree, particularly a Ph.D. in a STEM field tied to the proposed endeavor, to be an especially positive factor “along with other evidence” necessary to satisfy this requirement.  The new policy recognizes that individuals with advanced degrees in a STEM field, especially Ph.D. but also some with a Master’s, have acquired scientific knowledge in a narrow STEM area, particularly by virtue of the research done for the Ph.D. dissertation or master’s theses.

   The “other evidence” that has to accompany the Ph.D. or Master’s degree in a STEM field can take many forms, including but not limited to, patents or other intellectual property, letters from experts in the person’s field, scholarly publications and citations, business plans, client contracts, evidence of awards or grants related to the endeavor, letters from government agencies, and much more.

   The STEM degree provides an added benefit for proving the 3^rd Dhanasar prong, that on balance it would be beneficial to waive the job offer and advertisement requirements.  The job offer and advertisement requirements of the PERM system were put in place to ensure that U.S. workers are not being displaced by foreign workers.  Therefore, to meet the 3^rd Dhanasar prong, the applicant seeking a National Interest Waiver must convince USCIS that the importance of the proposed endeavor is so high that it outweighs the risk associated with waiving the PERM job offer and advertising. 

   Under the new policy, USCIS will consider a combination of the following facts as a strong positive factor in favor of the waiver: the NIW petitioner has an advanced STEM degree, particularly a Ph.D.; the proposed endeavor involves furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and the NIW petitioner is well positioned to advance the proposed STEM endeavor.  USCIS will give even more weight to endeavors that have the potential to support U.S. national security or enhance U.S. economic competitiveness, or where the NIW petition is supported by letters from interested U.S. government agencies.

   There is no magic number or combination of items one can submit to ensure approval under the NIW framework.  Each case has its own facts and will generate its own evidence.  Therefore, it is crucial to have all facts and qualifications carefully analyzed, and all evidence tailored to each specific case, before submitting a NIW petition. 

   We will continue to monitor the implementation of the NIW policy.  If you wish to discuss this, or any other immigration-related matter in more detail, do not hesitate to contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or 608-252-9291.