The National Interest Waiver (NIW) is an employment based green card option in the EB-2 category. To qualify for an EB-2, the applicant must have an advanced degree or its equivalent (a bachelor’s degree plus 5 years of post-baccalaureate, progressive work experience in the profession) or demonstrate that they have exceptional ability. Usually, this category requires that the applicant have a full-time job offer from a U.S. employer and this employer must have tested the U.S. labor market and found that there were no willing, qualified and available U.S. workers for the position. However, the National Interest Waiver option allows an applicant to self-petition for the green card and does not require a job offer or completion of a labor certification.
To qualify for a National Interest Waiver, there are three prongs that must be satisfied:
- The foreign national’s must show that their proposed endeavor has both substantial merit and national importance;
- The foreign national must show that they are well-positioned to advance the proposed endeavor; and
- There must be a showing 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 third prong is the one that allows the applicant to self-petition and removes the requirement of a job offer and labor certification. Prior to the adoption of the NIW test above under the 2017 case, Matter of Dhanasar, applicants had to prove that the national interest would be adversely affected by requiring a labor certification. This prong caused significant confusion and was one of the reasons the court changed the analytical framework in Matter of Dhanasar. Under the court’s new framework, NIW applicants may be successful in meeting this third requirement by submitting evidence of the following:
- Evidence that it would be impractical for the applicant to secure a job offer or for the petitioner to obtain a labor certification in light of the nature of the proposed endeavor or the applicant’s qualifications;
- Evidence that even if there were other qualified U.S. workers, the U.S. would still benefit from the applicant’s contributions; and/or
- Evidence that the U.S. national interest(s) being served by the applicant’s contributions are sufficiently urgent that to support waiving the labor certification process.
Under this approach, USCIS should evaluate one or more of the factors above to determine whether, on balance, it is beneficial to the U.S. to waive the requirements of the job offer and labor certification. The first factor listed above is particularly relevant to entrepreneurs, as the very nature of the entrepreneurial endeavor means that a labor certification is not usually possible for these types of applicants. Additionally, an applicant’s past record of success in an endeavor may be used to demonstrate that the U.S. will benefit from the applicant’s contributions even if other U.S. workers were able to work in the same area. NIW applicants who are working on important, time-sensitive research in areas of significant national interest, such as national security, may also be able to demonstrate that their work is so important and time sensitive, that on balance it makes sense to waive the requirement of the job offer and labor certification.
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