NIW

Introduction & Background

The Employment-Based Second Preference Immigrant Visa (EB-2) serves as a pathway for qualified individuals holding advanced degrees or exceptional abilities to obtain U.S. permanent residency. While these petitions typically require labor market testing and an approved PERM labor certification from the Department of Labor (DOL), there exists a notable exception: the National Interest Waiver (NIW).

In addition the waiver of the PERM requirement, the NIW offers the unique advantage of self-sponsorship, allowing eligible candidates to apply for U.S. permanent residency independently without the need for employer sponsorship.

The NIW is designed for individuals whose employment in the United States would greatly benefit the nation, emphasizing the importance of their contributions over the conventional job market demands. The NIW thus removes significant barriers, enabling a more streamlined and flexible immigration process for those deemed to significantly advance their field of endeavor in the U.S.

Criteria for Establishing “National Interest”

The Matter of Dhanasar case is a pivotal 2016 precedent decision by the Administrative Appeals Office (AAO) that established a framework for assessing eligibility under the NIW category. Dhanasar sets forth three prongs that must be met for an individual to qualify for a National Interest Waiver. Applicants must convincingly demonstrate the following:

  • PRONG 1 – Your proposed endeavor must have both substantial merit and national importance. You must show how your work or contributions bring significant value, quality, and impact to the U.S., reaching beyond a mere local impact. Contributions may include things like innovation, expertise, and solving specific challenges in the U.S. Your work must extend beyond personal or professional value and possess broader significance for the U.S. to make a meaningful difference by impacting the economy, society, or specific sectors.
  • PRONG 2 – You must be well positioned to advance the proposed endeavor. This looks at your qualifications, skills, and past successes in related areas, as well as your plan for the future and the support of relevant stakeholders. You need to provide strong evidence that you’re capable of making a real difference in the United States, with work that matters across the country. This involves presenting clear evidence that your work addresses significant challenges or has considerable potential to contribute to the United States in meaningful ways.
  • PRONG 3 – On balance, it must be beneficial for the United States to waive the job offer and labor certification requirements. The key here is to prove that it’s better for the U.S. to let you work here permanently without undergoing the labor certification (PERM) process which tests the U.S. labor market to prove there is not a qualified American able and willing to do what you do. Your application should clearly show why your unique skills or work are in the national interest, possibly because of the innovative nature of your work or a shortage of U.S. workers with your expertise.

Applicant’s Eligibility Criteria

To be considered for a NIW, an individual must first meet the criteria for an EB-2 visa, which can be accomplished in one of two ways:

  • Advanced Degree: An applicant must hold a Master’s, Ph.D., or another post-baccalaureate degree. Alternatively, a Bachelor’s degree coupled with a minimum of five years of progressive work experience in the field may suffice.
  • Exceptional Ability: Applicants without an advanced degree can still be eligible for a NIW by demonstrating exceptional ability, provided they meet at least three of the specified criteria.
    1. Official academic records 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.
    2. Letters from current or former employers demonstrating that you have at least ten (10) years of full-time experience in your occupation.
    3. A license to practice your profession or certification for your profession or occupation, if applicable.
    4. Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability.
    5. Membership in professional associations, which requires outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields.
    6. Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.

Application Process

The primary application form is the I-140 Immigrant Petition, which can be submitted to the U.S. Citizenship and Immigration Services (USCIS). Applicants may choose standard processing or expedite their application through premium processing for an additional fee. The latter guarantees a response within 45 business days.

It’s also possible to concurrently file the I-140 petition with a Form I-485 Adjustment of Status if the individual is eligible under the Visa Bulletin. However, many clients opt to file these forms consecutively to ensure I-140 approval before incurring additional costs.

Your immigration attorney will provide a detailed breakdown of legal and filing fees for preparing your application. Every application is meticulously crafted to reflect your unique qualifications and contributions, ensuring the best possible representation of your case for the National Interest Waiver.

The National Interest Waiver serves as a valuable alternative for individuals who meet the criteria for an EB-2 visa but wish to avoid the laborious labor certification process. It is crucial to adequately prepare and present a compelling case to maximize the likelihood of success.