U.S. Citizenship and Immigration Services (USCIS) updated last year its policy guidance about a specific type of employment-based, immigrant visa petition known as a National Interest Waiver (NIW), clarifying and possibly relaxing the standards for foreign nationals with advanced degrees in science, technology, engineering, and mathematics (STEM) fields. The new guidance reflects the Biden Administration’s efforts to attract and retain foreign STEM graduates, which we previously discussed in regards to O-1 nonimmigrant visas. These updates make the NIW a potentially attractive option for foreign nationals with advanced STEM degrees who want to pursue permanent residence (i.e., a “green card”) in the United States as well as their employers, especially when combined with the recent expansion of expedited “premium processing” for NIW petitions that can speed up the green card process by months, if not years, as compared to other employment-based green card processes.
The NIW is an immigrant petition in the employment-based second preference (EB-2) category. A foreign national may self-petition for an NIW without a job offer in the United States or an employer may file an NIW petition on a foreign national employee’s behalf. In either case, an NIW petition allows the petitioner to forego the permanent labor certification (PERM) process with the Department of Labor by demonstrating that the foreign national’s employment in the United States is in the national interest.
Under existing standards, foreign nationals seeking an NIW must show evidence of an advanced degree or exceptional ability, meaning “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” To demonstrate eligibility, foreign nationals must also satisfy a three-pronged test established in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Specifically, they must show: (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) the foreign national is well positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and a labor certification.
While the updated USCIS policy guidance still requires STEM graduates to satisfy the Matter of Dhanasar test, it indicates that having an advanced degree — particularly a doctoral degree — in a “critical and emerging technology” STEM field holds substantial evidentiary weight under all three prongs. With respect to the first prong, the guidance states that “[m]any proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance.” Under the second prong, USCIS considers an advanced STEM degree “tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor.” Lastly, in evaluating the third prong, USCIS considers it especially beneficial if the foreign national’s endeavor “has the potential to support U.S. national security or enhance U.S. economic competitiveness.” USCIS does caution, however, that possession of an advanced degree alone is not sufficient.
The new guidance further suggests that USCIS may be inclined to approve NIWs for STEM advanced degree graduates, particularly those with doctoral degrees and those engaged in critical and emerging technologies.
As mentioned above, NIW petitions are also now eligible for premium processing, in which USCIS will adjudicate the case within 45 calendar days for a $2,500 fee. With processing times for PERM labor certifications currently taking up to two years — and growing ever longer — the NIW may be a much faster alternative for eligible foreign nationals seeking a green card. Accordingly, these latest developments may make the NIW an attractive option for foreign nationals with an advanced degree in a STEM field.
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