NIW for Postdoctoral Researchers

Postdoctoral researchers may qualify for an EB2 National Interest Waiver without waiting for a permanent faculty or research position.

NIW permits self-petitioning and does not require PERM labor certification, but a postdoc must still establish underlying EB2 eligibility and satisfy all three Matter of Dhanasar requirements.

For the broader framework, review NIW for researchers.

Can a Postdoc Apply for NIW?

Yes. There is no rule limiting NIW petitions to professors, senior scientists or permanent employees.

The important questions are whether the researcher qualifies for EB2 and whether the proposed endeavor satisfies the NIW framework.

Underlying EB2 Eligibility

A postdoc commonly qualifies for EB2 through an advanced degree.

The NIW analysis is separate. Having a PhD or other advanced degree does not itself establish national interest waiver eligibility.

No Permanent Job Offer Required

Unlike EB1B, NIW does not require a permanent research position.

A researcher may therefore potentially file while working under a temporary postdoctoral appointment.

No PERM Labor Certification

An approved NIW waives the normal EB2 job-offer and labor-certification requirements.

This gives researchers more flexibility than an employer-controlled PERM process.

The Three Dhanasar Prongs

The petition must establish:

1. substantial merit and national importance of the proposed endeavor;
2. that the postdoc is well positioned to advance the endeavor; and
3. that, on balance, waiving the job offer and labor certification would benefit the United States.

Define the Proposed Endeavor

The petition should describe what research the postdoc intends to continue in the United States.

The endeavor should be broader and more specific than simply stating that the applicant intends to remain employed as a postdoctoral researcher.

National Importance for Postdocs

The importance of the employer, university or scientific field does not automatically establish national importance.

The petition should explain the prospective broader impact of the particular research program.

Early-Career Researchers Can Still Be Well Positioned

The second Dhanasar prong does not require the applicant to have reached the highest level of the profession.

USCIS considers the individual’s education, skills, knowledge, record of success, future plans, progress toward the endeavor and interest from relevant entities or persons.

Postdoctoral Research Experience

Current postdoctoral work can be useful evidence because it may demonstrate:

• continued progress in the proposed field;
• advanced technical expertise;
• access to appropriate research facilities;
• ongoing publication activity;
• important collaborations; and
• a credible pathway for continuing the proposed endeavor.

Publications

There is no fixed publication requirement for NIW.

A postdoc’s publication record may establish prior accomplishments and demonstrate the ability to carry out sophisticated research.

Citations

There is no fixed citation minimum.

Because early-career researchers have had less time to accumulate citations, publication age and field-specific practices may be important context.

Review NIW citation requirements.

Peer Review

Journal and conference peer review may demonstrate that professional organizations recognize the postdoc’s subject-matter expertise.

Patents, Software and Datasets

Applied researchers may have important evidence that does not appear through traditional academic citations.

Examples include patents, software adoption, datasets, prototypes, licensing and implementation.

Research Grants and Fellowships

Competitive funding may help demonstrate prior success and professional recognition.

The petition should explain the applicant’s role and the significance of the funding.

Recommendation Letters

Principal investigators can explain the postdoc’s personal contributions to collaborative research.

Independent experts can explain how the work has influenced researchers outside the applicant’s immediate laboratory.

Future Employment Plans

NIW does not require the postdoc to identify one permanent employer.

However, the petition should present a credible plan for continuing the proposed endeavor in the United States.

Evidence of prospective employment, collaborations or institutional interest may help demonstrate feasibility even though a job offer is not required.

Changing Employers

Because NIW is not tied to a petitioning employer, a researcher may have greater employment flexibility than with an employer-sponsored EB1B petition.

The researcher should nevertheless continue working in a manner consistent with the proposed endeavor underlying the NIW petition.

NIW Versus EB1B for Postdocs

EB1B requires a qualifying permanent research position and employer sponsorship.

NIW does not.

Review EB1B for postdocs.

NIW Versus EB1A for Postdocs

EB1A permits self-petitioning but requires extraordinary ability and sustained acclaim.

NIW uses a different standard and may be viable for researchers whose evidence does not yet rise to EB1A level.

Review EB1A for postdocs.

Common Postdoc NIW Problems

• assuming a PhD automatically qualifies for NIW;
• describing only the importance of the laboratory or university;
• failing to define a future proposed endeavor;
• assuming temporary employment is a problem when NIW does not require permanent employment;
• using citation totals without field or career-stage context;
• failing to explain the applicant’s personal role in collaborative research; and
• failing to establish the third Dhanasar prong.

Primary Legal Sources

• USCIS Policy Manual, National Interest Waivers
• Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
• 8 C.F.R. § 204.5(k)

Contact The Messersmith Law Firm to request an NIW evaluation.

This page provides general immigration information and is not legal advice.