NIW RFE for Researchers

A National Interest Waiver Request for Evidence can challenge underlying EB2 eligibility, the proposed endeavor, national importance, whether the researcher is well positioned, the third Dhanasar prong or several of these issues at the same time.

A strong NIW RFE response should follow the structure of the notice and directly address the reasons USCIS found the original evidence insufficient.

Review the complete NIW for researchers guide.

Current NIW Framework

An NIW applicant must first establish eligibility for the underlying EB2 classification.

The applicant must then establish the three Matter of Dhanasar prongs:

1. the proposed endeavor has substantial merit and national importance;
2. the applicant is well positioned to advance the proposed endeavor; and
3. on balance, it would be beneficial to the United States to waive the normal job-offer and labor-certification requirements.

Start With the Exact RFE Findings

Do not assume that an NIW RFE is only about national importance.

Create a separate response section for each issue USCIS raises.

Common issues include:

• advanced-degree eligibility;
• exceptional ability;
• relationship between qualifications and the endeavor;
• an inadequately defined proposed endeavor;
• substantial merit;
• national importance;
• limited prospective impact;
• lack of progress toward the endeavor;
• insufficient evidence that the applicant is well positioned;
• weak or generic support letters;
• speculative future plans; and
• failure to establish the third prong.

Underlying EB2 Eligibility RFE

USCIS evaluates underlying EB2 eligibility before determining whether the national-interest waiver should be granted.

A researcher may qualify as:

• an advanced-degree professional; or
• an individual of exceptional ability in the sciences, arts or business.

Advanced Degree Issues

An RFE may question:

• whether a foreign degree is equivalent to the required U.S. degree;
• whether the occupation is a profession;
• whether bachelor’s-plus-five-years experience is progressive and post-baccalaureate;
• whether the experience is in the specialty; or
• whether the applicant possessed the qualifying degree or experience at filing.

Review NIW eligibility without a PhD.

Exceptional Ability Issues

If the case relies on exceptional ability, the response should separately establish the applicable regulatory criteria and the required relationship between the exceptional ability and the proposed endeavor.

Proposed Endeavor RFE

USCIS may conclude that the petition describes the applicant’s occupation rather than the specific proposed endeavor.

For example, “working as a cancer researcher” or “working as an AI scientist” may be too general.

Review the NIW proposed endeavor requirement.

How to Clarify the Proposed Endeavor

The RFE response may identify:

• the specific problem being addressed;
• the applicant’s intended research or professional activities;
• methods or technology;
• anticipated applications;
• expected beneficiaries;
• planned collaborations;
• future research objectives;
• the applicant’s personal role; and
• how the work is expected to develop in the United States.

Do Not Turn the Endeavor Into a New Case

The response may clarify an endeavor that existed when the petition was filed, but eligibility must exist at filing.

The RFE response should not replace the original endeavor with a materially different future plan created only after USCIS raised concerns.

National Importance RFE

National importance is one of the most common NIW RFE issues.

USCIS evaluates the prospective impact of the specific proposed endeavor rather than simply the importance of the applicant’s occupation or general field.

Review the detailed NIW national importance RFE guide.

Field Importance Is Not Enough

An RFE may acknowledge that cancer research, artificial intelligence, cybersecurity, semiconductors, energy or another field is important while finding that the applicant did not establish national importance of the particular proposed endeavor.

The response must connect national priorities to the applicant’s specific future work.

Government Reports Must Be Connected to the Endeavor

Government publications can help demonstrate that a particular problem matters to the United States.

They are more persuasive when the response explains exactly how the proposed endeavor addresses the problem identified by the government source.

Broader Prospective Impact

Depending on the field, evidence may show that the endeavor has potential implications for:

• scientific advancement;
• public health;
• medical treatment;
• national security;
• critical and emerging technology;
• economic competitiveness;
• advanced manufacturing;
• energy;
• infrastructure;
• environmental protection;
• agriculture;
• transportation;
• education; or
• other significant U.S. interests.

National Importance Does Not Require Nationwide Worksites

A research project performed at one university or laboratory may still have national importance if its prospective implications extend more broadly.

The response should focus on impact rather than physical geography.

Employer Benefit Versus National Importance

An RFE may conclude that the evidence demonstrates benefit only to the applicant’s employer.

The response should explain how the work can affect a broader research community, industry, patient population, government interest or other area beyond the immediate employer.

Publications and Citations Do Not Automatically Prove National Importance

Publications and citations primarily describe the applicant’s past research record.

They can support the overall NIW case but should not substitute for a forward-looking explanation of the proposed endeavor’s prospective impact.

Well-Positioned RFE

The second Dhanasar prong asks whether the applicant is well positioned to advance the proposed endeavor.

Review the NIW well-positioned requirement.

Evidence Relevant to Being Well Positioned

A response may use:

• education;
• specialized skills;
• prior research success;
• publications;
• citations;
• patents;
• licenses;
• technology implementation;
• research grants;
• government funding;
• awards;
• peer review;
• institutional support;
• research collaborations;
• contracts;
• preliminary results;
• ongoing projects; and
• a credible plan for future work.

No Fixed Publication or Citation Threshold

USCIS does not impose a fixed publication or citation minimum for NIW.

The response should explain what the applicant’s actual evidence demonstrates rather than argue from an unofficial numerical threshold.

Review NIW without citations.

Evidence of Progress

If USCIS considers the future plan speculative, concrete evidence of progress may be particularly important.

Examples include:

• current research;
• preliminary results;
• active grants;
• institutional facilities;
• collaboration agreements;
• patent filings;
• working prototypes;
• clinical studies;
• software development;
• contracts; and
• other documented steps already taken.

Recommendation Letter RFE

USCIS may give limited weight to letters that simply say the applicant is talented or that the field is important.

More persuasive letters generally:

• identify the writer’s expertise;
• explain how the writer knows the applicant or work;
• provide specific examples;
• discuss the actual proposed endeavor;
• explain prior accomplishments;
• identify concrete reasons the applicant is well positioned; and
• are supported by independent evidence.

Review NIW recommendation letters.

Institutional Support Letters

A university or employer may explain:

• the applicant’s research role;
• available laboratory resources;
• funding;
• future projects;
• collaborators;
• equipment;
• planned research direction; and
• institutional interest in continued work.

Independent Expert Letters

An independent expert may explain broader professional implications or prior outside use of the applicant’s work.

Review NIW independent expert letters.

Business Plan or Research Plan RFE

Where USCIS finds the future plan vague, a detailed plan may help explain the endeavor.

For researchers, useful detail may include:

• specific objectives;
• research questions;
• methods;
• expected projects;
• collaborating institutions;
• available resources;
• anticipated funding;
• implementation plans;
• publication or commercialization goals; and
• expected broader impact.

Third-Prong RFE

The third prong asks whether, on balance, it would benefit the United States to waive the normal job-offer and labor-certification requirements.

Review the NIW third prong.

Do Not Argue Only That PERM Is Inconvenient

The third prong is not satisfied merely because self-petitioning is easier or faster for the applicant.

The response should focus on benefit to the United States.

Relevant Third-Prong Considerations

Depending on the facts, the response may address:

• whether the nature of the endeavor makes labor certification impractical;
• whether the United States would benefit from the applicant’s contributions even if qualified U.S. workers are available;
• the value of flexibility across research institutions or collaborations;
• the applicant’s unusual qualifications;
• the prospective importance of the work; and
• urgency of the national interest where applicable.

Employer-Sponsored Research Does Not Defeat NIW

An applicant may have a current employer and still qualify for NIW.

Employment may provide important evidence showing how the applicant will advance the endeavor.

Government Interest

Government funding or direct government interest can strengthen an NIW response when it relates specifically to the proposed endeavor.

Useful evidence may include:

• grant awards;
• government contracts;
• agency collaboration;
• letters from government officials;
• agency programs; and
• official materials identifying the relevant national priority.

Research Impact Beyond Citations

If USCIS focuses heavily on modest citation counts, the response should identify other objective evidence where available.

Examples include:

• patent licensing;
• clinical implementation;
• industry adoption;
• government use;
• software deployment;
• standards adoption;
• commercial use; and
• other measurable impact.

Review research impact beyond citations.

Correct Factual Errors in the RFE

If USCIS misunderstands a publication, degree, research role, citation record or proposed endeavor, address the error directly and cite the evidence already in the record.

Eligibility Must Exist at Filing

The applicant must establish eligibility as of the filing date.

An RFE response can clarify the original record and provide additional documentation of facts that existed at filing.

Later accomplishments should not be used to create eligibility that did not exist when the petition was filed.

Use New Evidence Carefully

Evidence generated after filing may sometimes corroborate an earlier fact, but the response should make clear which qualifying facts and accomplishments already existed at filing.

Organize the NIW RFE Response

A clear response may use the following structure:

1. summary of the RFE and legal standard;
2. underlying EB2 eligibility;
3. definition of the proposed endeavor;
4. Prong One: substantial merit and national importance;
5. Prong Two: well positioned;
6. Prong Three: balancing test;
7. correction of factual or legal errors;
8. exhibit references; and
9. conclusion.

Do Not Mix the Three Dhanasar Prongs Together

The same evidence may be relevant to more than one prong, but the response should explain how the evidence satisfies each distinct legal requirement.

Common NIW RFE Response Problems

• arguing that the entire field is nationally important;
• failing to define the specific proposed endeavor;
• using publications and citations as automatic proof of national importance;
• relying on employer prestige;
• submitting generic government reports without connecting them to the endeavor;
• using recommendation letters without objective corroboration;
• failing to demonstrate progress toward future work;
• repeating Prong One arguments under Prong Two and Prong Three;
• changing the endeavor materially after filing;
• using post-filing achievements to create eligibility; and
• failing to address underlying EB2 eligibility.

Related NIW Guides

• NIW proposed endeavor
• NIW national importance
• NIW national importance RFE
• NIW well positioned
• NIW third prong

Primary Legal Sources

• USCIS Policy Manual, National Interest Waivers
• 8 C.F.R. § 204.5(k)
• 8 C.F.R. § 103.2
• Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
• Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010)

Build the Response Around the Dhanasar Finding USCIS Actually Made

An effective researcher NIW RFE response should identify precisely what USCIS found missing, organize the evidence under the correct Dhanasar prong and explain how the complete record satisfies each requirement by a preponderance of the evidence.

Contact The Messersmith Law Firm to request review of an NIW RFE for a researcher or scientist.

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