H1B Alternatives: Is the NIW Right for You?

Introduction

Many who are not selected in the H1B lottery–or who are looking for other options following their F1–seek alternative pathways to continue working in the United States, such as filing an I-140. In particular, the National Interest Waiver (NIW) petition is an attractive option that allows foreign nationals to seek an employment-based immigrant visa. Unlike many other H1B alternatives, the NIW allows you to self-petition, meaning you don’t need an employer to file on your behalf. In fact, you don’t even need a job offer to file a successful NIW petition.

Ideal for individuals holding an advanced degree, the NIW bypasses the usual labor certification requirement on the basis that the petitioner will advance the U.S. national interest. To file a successful NIW petition, you must adequately demonstrate that your continued work will significantly contribute to advancement in your field and provide substantial benefits to the United States.

However, while the NIW offers a unique pathway for individuals with strong credentials, many find H1B alternatives like Day 1 CPT programs to be more accessible and practical. In this article, we’ll explore the requirements of the NIW petition to help you determine if it’s an appropriate path for you to continue your life in the United States.

What is the NIW?

The NIW is a pathway that allows you to seek a green card, provided that the USCIS determines your work will benefit the United States. While the requirements of the NIW are generally less stringent than those of other I-140 immigrant petitions, such as the EB1A or EB1B, it still requires evidence that you have a record of success in your field.

To qualify for the NIW petition, you must first meet one of the following criteria:

• You possess an advanced degree or its equivalent–namely a bachelor’s degree with five years of experience in your field.
• You have demonstrated exceptional ability in your field.

Because providing evidence of an advanced degree is more objective and less complex than demonstrating exceptional ability, for the purposes of this article, we’ll assume you plan to submit evidence of an advanced degree. In either case, you will need to convince the immigration officer that:

• Your proposed endeavor has both substantial merit and national importance.
• You are well-positioned to advance the proposed endeavor.
• It would benefit the United States to waive the requirements of a job offer and labor certification.

While you can file an NIW without legal counsel, the complexities of this type of immigrant petition can be difficult to navigate, and an experienced immigration attorney can significantly increase your chances of success. You should note that attorney fees for helping you file your NIW petition often exceed $5,000, not including filing fees.

Preparing Your NIW Petition

Preparing an NIW petition, whether on your own or with the guidance of an immigration attorney, can take several months. As such, make sure you begin preparing your petition well before your current status expires. While the requirements of an NIW might seem straightforward, a disorganized or ill-prepared petition can trigger a Request for Evidence (RFE) or, in severe cases, a Notice of Intent to Deny (NOID). Below, you’ll find explanations for common types of evidence you will need to prepare and submit with your NIW petition.

Advanced Degree

Unless you are trying to claim exceptional ability, you will need to submit evidence that you hold an advanced degree. This evidence includes:

• Official transcripts: You should provide official transcripts that clearly indicate that you have received your degree. In other words, you shouldn’t submit transcripts you received before completing your degree. For example, if you received a master’s degree in May 2023 but you only have transcripts issued in December 2022, you will likely need to request updated transcripts from your university.
• A copy of your diploma: Although official transcripts should suffice to show you hold an advanced degree, submitting a copy of your diploma can help draw the immigration officer’s attention to your academic credentials.
• A degree evaluation: If your advanced degree is from an institution outside of the United States, you’ll need to submit an equivalency evaluation to confirm that your degree equals an advanced degree in the United States. You can find a qualified degree evaluator at the National Association of Credential Evaluation Services (NACES).

NOTE:  The degree evaluation should list a specific U.S. degree. For instance, a degree evaluator might determine that your foreign degree is “equivalent to five (5) years of doctoral study in the United States.” While we might consider this to be equal to at least a master’s degree, if not a Ph.D., this language could trigger an RFE. Instead, you’ll want to ensure that your evaluation specifically states equivalency to a master’s, a PhD, or an MD.

Your Proposed Endeavor

As noted above, you’ll need to provide evidence that your proposed endeavor has both substantial merit and national importance. But, first, what does the USCIS mean by the proposed endeavor? In essence, you’ll need to provide specific information about the work or projects you plan to complete if granted an NIW. 

This means you cannot merely state that you plan to continue working in your field or even within a specialized area within your field. Your NIW petition should thoroughly describe the work you plan to accomplish.

Describing your proposed endeavor

For example, if you’re a data scientist who specializes in machine learning and predictive analytics, you should state that your proposed endeavor is to continue working in machine learning and predictive analytics. Instead, you should indicate your specific aims–that you want to develop innovative algorithms and models to enhance data-driven decisions in the healthcare industry, and that your work will focus on advancing the field of artificial intelligence by creating solutions that solve complex problems within that sector.

Providing detailed information about your proposed endeavor helps lay the foundation for demonstrating its merit and national importance and is fundamental to preparing a strong NIW case.

Providing evidence of employment

Although it may seem contrary to the spirit of the NIW, which waives the requirement of a job offer, submitting evidence of employment related to your proposed endeavor helps demonstrate that you have an organized framework within which to advance your endeavor. To the extent that it’s possible, you should aim to provide one of the following documents along with your NIW petition:

• An employment verification letter: If you plan to advance your proposed endeavor with your current employer, you should submit a letter signed by a representative of your employer. This letter should not only confirm that you are currently employed but also discuss your salary and job responsibilities. Please note that the job description should align with your proposed endeavor.
• A formal job offer: Submitting a formal job offer, signed by a representative of a prospective employer, can also support your claims about your proposed endeavor. However, you must have genuine intent to accept the job offer. In addition, the job offer should include details about the work you will complete.
• A letter of intent-to-hire: In lieu of a formal job offer, you could submit a letter from a potential employer that expresses their intent to hire you in the future. For instance, if you’re currently working in your advisor’s lab as you complete your PhD, your advisor could sign a letter indicating that they intend to hire you in a role once you’ve completed your studies. As with a formal offer letter, this letter should describe your proposed job responsibilities.
• Evidence of a job search: If you’re unable to obtain any of the above evidence, you could submit evidence that you are undertaking a job search that relates to your proposed endeavor. This could include interview invitations or email confirmations indicating that you’ve applied to a relevant position. Please note that you should have genuine intent to accept one of these positions if offered.

Again, the NIW explicitly waives the job requirement and submitting employment evidence with your petition isn’t required. However, the USCIS tends to scrutinize all aspects of your proposed endeavor, and providing evidence of relevant employment can help to show your commitment to the endeavor.

Substantial Merit

As discussed above, demonstrating that your proposed endeavor has substantial merit is a requirement of the NIW petition. This means that you must establish that your endeavor is important to the field and has the potential for a positive impact. You can show the substantial merit of your proposed endeavor by providing evidence indicating its impact on factors like the world economy, the environment, or trends related to your area of expertise.

For instance, if you’re a data scientist developing algorithms for the healthcare sector, you might provide data that clearly shows a growing demand for AI-driven solutions within healthcare. Or you might provide statistics that demonstrate a trend toward leveraging predictive analytics for personalized medicine. Essentially, you need to demonstrate how your work addresses a specific need or problem.

National Importance

In addition to demonstrating the substantial merit of your proposed endeavor, you will also need to show that it carries national importance. This means you’ll need to establish that it not only poses benefits to your field but also has broad implications for the United States. Often, demonstrating national importance involves discussing your work in relation to the U.S. economy, public health, or national infrastructure.

If you’re our data scientist, you might argue that your algorithms enable early detection of disease outbreaks, optimize patient treatment plans, and facilitate research in drug development, thus saving money on research and improving patient outcomes. In essence, you’ll want to demonstrate how your proposed endeavor holds direct value to the United States.

Your Qualifications to Advance the Endeavor

Once you’ve established that your proposed endeavor has both substantial merit and national importance, you’ll need to demonstrate that you are well-positioned to advance the endeavor. This involves showing that you possess relevant education, skills, and knowledge, as well as establishing that you have a record of success in related efforts.

Education, skills, and knowledge

Beyond submitting evidence of your educational background, you’ll need to show that others have acknowledged your skills and expertise. A common way to indicate this is to provide evidence that you have been invited to perform–and have conducted–peer review work.

Being invited to perform peer review is a significant form of professional recognition and validates your expertise. It means that your knowledge and contributions to the field are valued and respected by your peers. In addition, participating in the peer review process shows that you’re committed to playing an active role in your professional community.

Other ways to verify your skills and knowledge include submitting evidence that you’ve been appointed to leadership roles within your field, such as serving as a guest editor for a journal issue or as a program committee member for a prominent conference. By demonstrating that others in your field have formally recognized your expertise, you indicate to the USCIS that you are capable of advancing your proposed endeavor.

Record of success in similar efforts

To show that you are in a strong position to advance your endeavor, you must establish that you have a record of success in similar efforts. For most fields of study, this requires that you provide evidence of publications, citations, conference presentations, or similar achievements in your field. Presenting this evidence in an organized manner is vital for making a strong impression on the immigration officer. As you prepare your NIW petition, gather any evidence you can of the following:

• Published papers: Publication in academic journals shows that you have made contributions to your field and that your work warrants an audience. Submitting the full texts of your published papers shouldn’t be necessary. As long as the first page of each publication indicates the journal name, article title, and clearly lists you as an author, submitting the first 1-3 pages should suffice. Additionally, you do not need to be the first or corresponding author for the papers you include in your petition.
• Journal rankings: While submitting evidence of all of your published papers is important, you may want to submit additional evidence if your work has been published in especially notable journals. For example, if one of your papers was published in the journal Neurocomputing, you might consider submitting evidence that Google Scholar ranks this journal as the #8 publication in the field of artificial intelligence and that it has an impact factor of 6.
• Citation record: Although citations might not be as important to the NIW as they are to EB1 or O1 petitions, they are still a primary metric by which the USCIS will likely evaluate your case. You should plan to submit a full record of your citations, via databases such as Google Scholar, Scopus, or Web of Science. While there is no stated minimum number of citations for an NIW petition, it may be safer to wait until you have at least 10-20 citations to your work before filing your petition.
• Noteworthy citations: While submitting your overall citation record is important, providing evidence that authors are using your work in meaningful ways can be especially helpful. For example, if the authors of a recent paper have cited your Neurocomputing paper to help develop a novel machine learning model for early cancer detection, you might submit their paper as evidence that others are using your work in noteworthy ways.
• Citation metrics: In addition to providing your overall citation record and any noteworthy uses of your work, any of your papers that rank in top 10% or 20% for citations received in your field for a given year can vastly improve your petition. Resources from Scopus or Web of Science can help you provide evidence that your papers are highly-cited.
• Conference presentations: For fields like computer science or data science, where conference presentations are often more highly-regarded than journal publications, providing evidence that you have presented at a notable conference can enhance your petition. Submitting relevant pages of a conference program, clearly referring to you as a presenter, should be sufficient.
• While the NIW doesn’t require you to demonstrate that you’re at the top of your field, it does require that you clearly establish that you have documented success in work related to your proposed endeavor. Well-organized evidence that highlights your accomplishments should help you fulfill the conditions of the NIW.

Letters of recommendation

Although letters of recommendation are not required for your NIW petition, submitting anywhere from 3-5 reference letters can provide a significant boost to your petition. Strong letters of recommendation help establish that others value your work and your presence in the field, and can support claims both that your proposed endeavor has intrinsic merit and that you are well-qualified to advance that endeavor.

You should note that many immigration officers tend to make a distinction between “dependent” and “independent” letters of recommendation, and each serves a unique purpose in your NIW petition:

• Dependent recommendations: In general, a dependent reference letter refers to one signed by someone who knows you personally. Technically, this could be a classmate, a colleague, or a coworker. However, ideally, you’ll be able to submit a dependent letter from a supervisor or academic advisor who is intimately familiar with your work. Submitting dependent letters from recommenders who are not well-established in your field tends to be less effective than providing letters from individuals with a record of experience and expertise.
• Independent recommendations: An independent reference letter typically refers to one signed by someone who has not worked with you, has not studied or worked at the same institution as you, and otherwise does not know you personally. Independent recommendations can come from someone who has attended one of your conference presentations, cited one or more of your papers, or has used your work in some other way. In most cases, the strongest independent letters are signed by those who have cited your work in a noteworthy way.
• Generally speaking, independent recommendations tend to carry more weight than dependent recommendations, as they demonstrate that those unfamiliar with you personally still find your work valuable enough to discuss. Ordinarily, you shouldn’t submit more dependent letters than independent ones. In addition, the following guidelines can help ensure that the reference letters you submit benefit your overall petition:
• Both dependent and independent recommenders should be clear about how they are familiar with you or your work, and they should provide basic information about themselves to establish credibility as an expert in the field.
• Recommenders should avoid referring to your “potential” or to the potential of your work. The NIW petition requires that you have a demonstrated record of success, and immigration officers can sometimes misinterpret references to your potential to mean that your work hasn’t yet impacted the field.
• Recommenders should discuss the technical details of your work. Rather than covering a broad overview of your contributions, a dependent recommender might choose one or two specific projects to discuss in detail. An independent recommender who has cited one of your papers should discuss the work that is cited in their paper.
• To reiterate, while submitting reference letters with your NIW isn’t required, they can significantly boost your chances of approval, particularly if you don’t have a strong citation record or evidence that your work has been used in meaningful ways.

How to deal with RFE?

Due in part to the high volume of NIW petitions filed each year, processing times tend to be lengthy and sometimes vary depending on the processing center. As of this writing, processing times for the NIW are generally between 10-12 months. You can find up-to-date processing times on the USCIS website.

Of course, your NIW petition could always receive an RFE. What should you do in this case? First and foremost, you need to prioritize responding to the RFE, as your response must be received by the date indicated on the notice. In general, you will have approximately 90 days to respond.

While you cannot adequately prepare for an RFE response until you know specifically what the immigration officer is requesting, common reasons for an RFE include:

• Insufficient evidence that your proposed endeavor has substantial merit or national importance. An immigration officer might determine that your proposed endeavor doesn’t meet the threshold for substantial merit, national importance, or both. In this case, letters from independent experts that specifically address the merit and importance of your work can help convince the officer otherwise.
• Insufficient evidence that you are well-positioned to advance the proposed endeavor. If you have a weak citation record, few or no publications, or otherwise inadequate evidence that your work has benefited the field, an immigration officer might determine that you are not equipped to advance the proposed endeavor. Letters from experts that discuss why your credentials might seem weak, and that point to other factors to consider, can help ensure a successful response. For example, if you’re working in a low-citation field such as economics, you might submit a letter in which an expert explains the low-citation climate and proposes alternative ways of evaluating your ability to advance your proposed endeavor.
• Incomplete or unsatisfactory documentation. Your academic transcripts might not indicate the date you received your advanced degree. The job duties discussed in your employment evidence might not align with your proposed endeavor. Language in one of your reference letters might undermine the argument that you are qualified to advance the proposed endeavor. While none of these issues guarantee that you’ll receive an RFE, it helps if you are prepared to address them if needed. In this case, you’ll need to provide evidence that aligns with the immigration officer’s request, whether it means submitting updated transcripts, new employment evidence, or new letters of recommendation.

As always, by ensuring that your initial NIW filing is comprehensive and compelling, you minimize the risk of receiving an RFE and increase the likelihood of a successful outcome for your NIW petition.

An Alternative to NIW

Among H1B alternatives, the NIW is vastly popular for those holding advanced degrees, particularly among scientists and engineers. However, preparing an NIW petition is also complicated and sometimes expensive. It isn’t uncommon for NIW petitioners to overestimate their credentials and thus spend unnecessary time and money filing an ill-fated petition.

Another alternative you might consider is enrolling in a Day 1 CPT program at an accredited university. Day 1 CPT programs allow you to participate in Curricular Practical Training (CPT) from the very beginning of your academic program. 

CPT is a program that allows F1 visa holders to gain practical experience in their field of study through employment or internships directly related to their academic curriculum. Typically, you must wait at least one academic year before you’re eligible for CPT. However, the United States allows academic institutions to develop programs in which CPT is essential to the curriculum from the start of the program.

The benefits of Day 1 CPT

The benefits of enrolling in a Day 1 CPT program are significant and unique. The approach of these programs allows you to combine academic learning with practical work experience, fostering improved career readiness and enhancing your career prospects in the United States. Below, you’ll find a few of the many benefits of enrolling in a Day 1 CPT program at an accredited university.

Practical experience from day one

Enrolling in a Day 1 CPT program offers the significant benefit of gaining practical, hands-on experience in your field right from the start of your academic journey. While coursework is undeniably important, many students learn best by applying academic concepts in a practical setting, and Day 1 CPT helps to bridge the gap between theoretical knowledge and practical application.

Reduced onsite requirements

The F1 visa requires that you take a certain number of in-person or blended courses to maintain your status. One of the significant benefits of enrolling in a Day 1 CPT program is the potential for reduced onsite requirements. Many schools offering Day 1 CPT–such as CIAM, Trine University, and Monroe College–only require you to be on campus once per semester.

With fewer in-person class requirements, you have more flexibility in choosing where to live, potentially reducing housing and commuting costs and allowing you to live closer to your place of employment. Since you’re not as limited by geographical proximity to your university when seeking employment opportunities, you may find a wider array of internships or jobs that align with your career goals.

Opportunities for post-graduation job offers

Participating in a Day 1 CPT program can improve your post-graduation job prospects. Many U.S. employers value practical experience and prefer candidates familiar with industry practices. Day 1 CPT can position you favorably for future job opportunities, allowing you to leverage your hands-on skills and industry insights.

Furthermore, the professional network you build during CPT can help you if you choose to apply for H1B once you graduate, as an established work relationship with an employer during your program can evolve into an H1B sponsorship. Additionally, working on practical projects during your academic program can help you build a stronger NIW case should you plan on petitioning in the future.

Conclusion

The NIW provides a meaningful opportunity for foreign workers to contribute to the U.S. national interest and pursue permanent residency without employer sponsorship. However, its requirements and complexities require thorough preparation and an understanding of what the USCIS wants to see in your petition.

For those of you not selected in the H1B lottery or who are otherwise seeking H1B alternatives, the NIW might be a viable alternative, but it requires you to thoroughly and convincingly demonstrate your qualifications and the merits of your proposed endeavor.

As you consider your options, weigh the NIW against other pathways such as Day 1 CPT programs, which will allow you to build both your academic and professional profile. Your efforts today can pave the way for a rewarding future in the United States.