National Interest Waiver

The EB2 visa, specifically the National Interest Waiver (NIW) category, is an essential pathway for highly skilled professionals seeking to obtain a U.S. green card without the need for a specific job offer. The NIW category, part of the employment-based second preference (EB2) visa, allows foreign nationals to bypass the labor certification process by proving that their work in the United States is in the national interest. This blog will address some frequently asked questions to help you understand the key aspects of the EB2 NIW process.

Understanding the National Interest Waiver (NIW)

The National Interest Waiver (NIW) is a special provision under the EB2 visa category that allows foreign nationals to self-petition for a green card. Unlike the regular EB2 process, which requires a U.S. employer to sponsor the applicant and obtain a labor certification, the NIW permits individuals to bypass these requirements. To qualify, the applicant must demonstrate that their work has substantial merit, is of national importance, and that they are well-positioned to advance their proposed endeavor in the United States. The decision to grant an NIW is based on the “Matter of Dhanasar” three-prong test, which evaluates the potential national benefit of the applicant’s contributions.

Key Differences Between Regular EB2 and EB2 NIW

One of the primary distinctions between a standard EB2 visa and an EB2 NIW is the requirement for a job offer and labor certification. In a regular EB2 case, a U.S. employer must act as the petitioner and obtain a labor certification to prove that no qualified U.S. workers are available for the job. The foreign national is the beneficiary of this petition. Conversely, in an EB2 NIW case, the foreign national can self-petition, meaning they can apply on their own behalf without a job offer or labor certification. This self-petitioning aspect makes the NIW an attractive option for individuals whose work benefits the United States but who may not have a specific employer willing to sponsor them.

Eligibility for the EB2 NIW

To be eligible for the EB2 NIW, an applicant must first meet the basic requirements of the EB2 category, which includes holding an advanced degree or demonstrating exceptional ability in their field. Advanced degree professionals typically hold a U.S. or foreign equivalent degree above a bachelor’s level or have a bachelor’s degree with at least five years of progressive work experience. For those without an advanced degree, demonstrating exceptional ability through substantial evidence of achievements and recognition in their field can also qualify them for the EB2 NIW. Once the basic EB2 requirements are met, the applicant must also satisfy the NIW criteria by proving that their work aligns with the national interest of the United States.

Advantages of the EB2 NIW

The EB2 NIW offers several significant advantages over the regular EB2 visa. Firstly, it eliminates the need for a labor certification, which can be a lengthy and complex process. Secondly, it allows the applicant to self-petition, removing the dependency on a U.S. employer for sponsorship. This independence can be particularly beneficial for researchers, entrepreneurs, and other professionals whose work may not fit neatly into a traditional employment model. Furthermore, the EB2 NIW is available to individuals both inside and outside the United States, providing a flexible option for highly skilled professionals globally.

Filing and Approval Process

It is crucial to present a well-organized and compelling case, as the approval of the NIW petition depends heavily on the quality of the evidence and the persuasiveness of the argument. While there is no fixed number of publications, citations, or recommendation letters required, the evidence must collectively demonstrate the applicant’s impact and potential contributions to the United States.

By understanding the nuances of the EB2 NIW process, eligible professionals can take advantage of this pathway to achieve their U.S. immigration goals. Whether you are an advanced degree holder or possess exceptional abilities, the EB2 NIW provides a unique opportunity to contribute to the national interest of the United States while advancing your career and life in the U.S.

We have successfully helped hundreds of clients obtain NIW green cards. If you want to obtain an NIW green card and need our help, please contact us at 305-515-0613 or info@messersmithlaw.com. We are here to assist you.

NIW Requirements

The bare minimum qualification for the NIW standard is that the foreign national is a member of the professions holding an advanced degree, defined as a bachelor’s degree with five years of progressive experience or a Master’s degree or higher OR has exceptional ability in the sciences, arts or business.  Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered.”  The foreign national can prove this by showing they meet at least three of the following criteria:

• Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
• Letters documenting at least 10 years of full-time experience in your occupation
• A license to practice your profession or certification for your profession or occupation
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
• Membership in a professional association(s)
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
• Other comparable evidence of eligibility is also acceptable.

Foreign nationals seeking a national interest waiver must also demonstrate that waiving the labor certification process be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).

In 1998 in the case of New York State Dept of Transportation (NYSDOT) established specific criteria for NIW petitions but this standard was recently modified to make petitions by job creators easier.  In Re Dhanasar (2016) now directs USCIS to grant a national interest waiver if the foreign national demonstrates by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The applicant’s spouse and minor children may obtained derivative green cards based on the principle applicant’s approval and all beneficiaries who apply while in the United States may obtain temporary work authorization (EAD) and permission to travel (Advance Parole).

We have successfully helped hundreds of clients obtain NIW green cards. We’re looking forward to helping you and your family obtain green cards as well.  Feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com. For your reference, here are some samples of our approved petitions.