Green Card: EB-2 National Interest Waivers (NIW)

The National Interest Waiver (NIW) is available to foreign nationals of exceptional ability in the sciences, arts, or business, and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D.). Ph.D. students also qualify. The National Interest Waiver is a procedure to bypass the cumbersome labor certification process, as administered by the Department of Labor and which ordinarily is a prerequisite in obtaining permanent residence through the second preference EB-2 employment based green card category. See section 203(b) (2) of the Immigration and Nationality Act (the Act). The Act at section 203(b)(2)(B) also allows the Attorney General to waive the job offer requirement placed on EB-2 immigrants when the Attorney General determines that services the alien intends to provide will be in the national interest. Such waivers are commonly called national interest waivers.

I. Benefits of National Interest Waiver:

1. You do not require a Labor Certification
2. You can file your green card petition with the U.S. Citizenship and Immigration Services (USCIS) on your behalf (self-petition)

II. Requirements for National Interest Waiver:

1. It must be shown that the alien seeks employment in an "area of substantial intrinsic merit” and “national importance.”
2. The petitioner seeking the waiver must persuasively demonstrate that the alien is well positioned to advance the proposed endeavor.
3. On balance, the petitioner must prove that it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category.
4. The labor certification process exists to protect U.S. workers from foreign competition. If any U.S. worker meets the minimum qualifications for the job and is available to take the job, the employer will not be granted an alien labor certification. The USCIS opines in its decision that "an alien seeking exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process." The USCIS goes on to state that "with regard to the unavailability of qualified workers, the job offer based on national interest is not warranted solely for the purpose of ameliorating a local labor shortage".

Please note: Effective December 27, 2016 in Matter of Dhanasar , 26 I&N Dec. 884 (AAO 2016) the USCIS Administrative Appeals Office (AAO) changed the analytical framework for determining eligibility of national interest waivers and established a new test (described above) that will govern the adjudication of national interest waiver. Previously, the analytical framework reached in Matter of New York State Department of Transportation (NYSDoT) was the prevailing test that was used by USCIS to determine eligibility of national interest waivers. Dhanasar will now invalidate and replace the analytical framework reached in Matter of New York State Department of Transportation, and no longer require the petitioner to persuasively demonstrate that the national interest would be adversely affected if a labor certification were required of the foreign national. The “substantial merit” and “national importance” requirements remain the same as before.

You must be a person with exceptional ability in the sciences, arts, or business, or an advanced degree holder. In Matter of Dhanasar, the AAO indicated that a wide number of employment fields may qualify for the NIW including but not limited to: business, entrepreneurialism, science, technology, culture, health, and education.

1. Person With Exceptional Ability

To be classified as a person with exceptional ability, you must provide documented proof of at least three of the following:

1. An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability.
2. Letters documenting at least ten years of full-time experience
3. A license to practice the profession or certification for a particular profession or occupation
4. Evidence that you command a salary or other remuneration for services which demonstrates exceptional ability
5. Membership in professional associations
6. Documents which prove recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations

If the above standards do not apply, the USCIS may also accept other comparable evidence of eligibility.

2. Persons Holding Advanced Degrees

To be classified as a person holding an advanced degree, you must possess a master's degree or a bachelor's degree with at least five years progressive post-bachelor degree experience.

The term "National Interest" has not been defined in the statute. Matter of Dhanasar stipulates that endeavors that may be considered as being “national in scope” or of “national importance” are those that have a significant potential impact for job creation or substantial potential for economic growth, and which are focused in an “economically depressed area” such as an area of unemployment, or economically disadvantaged region. It is not required for the petitioner to show that the endeavor will bring immediate or quantifiable economic benefit to the United States to show that it is in the “national interest,” although providing such evidence is helpful in reaching the “preponderance of the evidence” standard applied to adjudication of NIW petitions.

Typically, aliens who are successful in securing an NIW present cases that establish themselves as having some unique and exceptional skill, experience, or knowledge, that sets them apart from their professional peers. Documents stating that he/she possesses a certain level of competence will not be sufficient to receive a National Interest Waiver. Rather, a proficiency that is greater than mere competence is expected of those seeking a National Interest Waiver. Further, it must be clearly demonstrated that the NIW candidate's past record substantiates projections of future benefits to the U.S. national interest. Recommendation Letters testifying to the alien's unique skill, experience, knowledge, or expertise will be examined by the USCIS and the credentials of the individuals who write such letters will be reviewed to determine whether they are qualified to make such evaluations.

The Administrative Appeals Unit of the USCIS set forth a list of factors that are to be considered in applying the national interest test to foreign nationals.

Factors that may be considered in determining national interest include, but are not limited to:

• Improving the U.S. economy
• Improving wages and working conditions of U.S. workers
• Improving education and training programs for U.S. children and under qualified workers
• Improving health care
• Providing affordable housing in the U.S.
• Improving the environment
• Request from an interested U.S. government agency

You must possess unique knowledge or abilities that set you apart from other professionals and you will use these attributes in activities that will significantly benefit the Nation.

In determining whether the foreign national is well positioned to advance the proposed endeavor, the foreign national’s education, skills, knowledge, and proven record of success will be assessed in related or similar efforts. The petitioner is not required to demonstrate that the endeavor is likely to succeed. Evidence that can be provided in support of this requirement includes but is not limited to: models, diagrams, or plans demonstrating future activities, evidence of progress in reaching the endeavor, and evidence that may demonstrate an interest from stakeholders.

Here, the endeavor’s importance will be weighed against the national interest and be based upon the overall benefit the United States will receive from the foreign national’s contributions. USCIS may also consider other factors to determine whether granting the NIW would be beneficial to the United States taking into consideration whether there are any qualified U.S. workers who can undertake the endeavor, and whether there is a sufficient national interest to justify a waiver of the job offer and labor certification requirement.

III. Information and / or Documentation You Will Need for Green Card Based on NIW:

Please note: Required documents may vary on a case-by-case basis depending on the field of proposed endeavor

• Copy of Notice of Approval for your current visa status (H, J-1, F-1, etc.);
• Current detailed resume/CV including your employment/research history (names, addresses, and exact dates of employment.);
• Copies of college/university degrees and transcripts or notarized copies showing that your educational background is comparable to at least a Master’s Degree awarded in the United States;
• Letters of recommendation from colleagues or other authorities in your field (Please ask the authors of these letters if you may also submit a copy of their resume with their recommendation letters);

Letters of Recommendation should demonstrate that:

1. The alien seeks employment in an area of substantial intrinsic merit;
2. The candidate possesses unique knowledge, abilities, or experience which sets him/her apart from his/her professional peers;
3. The candidate will utilize his/her unique talents in an activity significantly benefiting the field of specialization;
4. The proposed benefit will be national in scope; and
5. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements of the EB-2 category.

• Copies of all publications, publication citations, abstracts, & invitations to conferences, if any;
• Copies of any articles where your research has been cited;
• Copies of any academic awards, honors, or professional prizes you may have received;
• Annual Salary;
• Comments on your published works by critic’s/journal referees, if any;
• Evidence of membership in professional associations, if any;
• Details of the funding for your research projects or grants, if any;
• Newspaper articles describing the professional reputation of persons preparing your references, if any;
• Any other evidence that shows that your work will benefit the U.S. National interest.

Please call us today for more information regarding the National Interest Waiver.