Normally, a permanent job offer and an approved labor certification are pre-requisites to file an EB-2 petition. However, a National Interest Waiver (NIW) petition requests that the otherwise required U.S. job offer requirement, and thus the labor certification requirement, be waived for the sake of the national interest of the United States.
In other words, an applicant may apply for a NIW immigration petition without a labor certification or a job offer from a US employer.
Clear advantages an attractive choice for scholars, researchers, post doctoral research fellows, PhD students, and other advanced degree professionals.
Eligibility: Burden of proof on applicant to demonstrate that:
He/she has an advanced degree or exceptional ability in the sciences, arts or business;
He/she seeks employment in an area of substantial intrinsic merit to the U.S.;
The benefit from the proposed activity will be national in scope; AND
That the requirement of a Labor Certification for the candidate will adversely affect the national interest.
The Law:
Neither the statute nor the pertinent regulations define the term national interest. Additionally, Congress did not provide a specific definition of in the national interest. The Committee on the Judiciary merely noted in its report to the Senate that the committee had focused on national interest by increasing the number and proportion of visas for immigrants who would benefit the United States economically and otherwise.although clearly an alien seeking to meet the standard must make a showing significantly above that necessary to prove the prospective national benefit The burden will rest with the alien to establish that exemption from, or waiver of, the job offer wiII be in the national interest. Each case is to be judged on its own merits.
Other notes:
Applicant can file on behalf of him/herself; A U.S. employer may also file a NIW petition on behalf of the applicant.
Beneficiary can file other immigration petitions under other appropriate categories (such as an EB-1(a) Extraordinary Ability petition) while a National Interest Waiver petition is pending.
Currently, all EB-2 applicants can simultaneously file an I-485 Adjustment with their I-140 petitions EXCEPT those born in China and India (who can adjust when visa numbers become available).
Due to economic slowdown, the tightening of U.S. immigration policy, and USCIS practice varying between Service Centers, NIW petitions must be complex and have strong evidence.
If you are interested in learning more about the National Interest Waiver or to see if you qualify, please contact our office to schedule a consultation with one of our attorneys today!
