The National Interest Waiver (NIW) – Top Questions and Answers

The National Interest Waiver (NIW) is an employment based green card category that permits self-petitioning. The waiver part of the name is based on the fact that this green card is granted based on a waiver of the job offer and the labor certification (PERM) process. The national interest part of the name is based on the requirement that the waiver can only be granted if it is in the national interest of the United States. The NIW falls under the EB-2 green card category, which means that any applicant must have an advanced degree or equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field) or be able to demonstrate exceptional ability in the sciences, arts or business. Changes in NIW law have made NIW petitions more available to entrepreneurs and other categories.

Below are some frequently asked questions about the NIW:

Does the NIW require an employer to sponsor the application?

No. The NIW allows applicants to self-petition. No sponsor is needed.

How long does it take to prepare an NIW application?

The NIW requires preparation of a significant amount of supporting documents. We provide a detailed questionnaire at the start of the process that asks for all the documents we need. The timeline for how long it will take to gather the documents depends on the individual and how quickly they can pull together the evidence. It also usually takes at least a few weeks (or months) to obtain finalized expert letters, as the letters will usually go through at least one round of editing before they are finalized.

How is the EB-2 NIW different from the EB-1A extraordinary ability green card?

The EB-2 NIW green card category is available for applicants with an advanced degree or equivalent (a baccalaureate or foreign equivalent degree plus 5 years of post-baccalaureate, progressive work experience in the field) or who can demonstrate exceptional ability in the sciences, arts or business. Applicants must also be able to show they qualify for the waiver of the job offer and labor certification requirement by meeting the three prongs listed below:

1. You must show that your proposed endeavor has both substantial merit and national importance;
2. You must show that you are well-positioned to advance the proposed endeavor; and
3. 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 EB-1A extraordinary ability green card is available for applicants who have achieved sustained national or international acclaim in the sciences, arts, education, business or athletics. These applicants must be able to show that they have risen to the very top of their field. They can demonstrate this extraordinary ability by either showing evidence of one large achievement, such as a Pulitzer prize or Olympic medal, or by showing they meet three out of the ten criteria listed below.

• Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence;
• Evidence of membership in associations in the field which demand outstanding achievement of their members;
• Evidence of published material about the applicant in professional or major trade publications or other major media
• Evidence that the applicant has been asked to judge the work of others, either individually or on a panel;
• Evidence of the applicant’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field;
• Evidence of authorship of scholarly articles in professional or major trade publications or other major media;
• Evidence that the applicant’s work has been displayed at artistic exhibitions or showcases;
• Evidence of performance of a leading or critical role in distinguished organizations;
• Evidence that the applicant commands a high salary or other significantly high remuneration in relation to others in the field;
• Evidence of commercial successes in the performing arts.

EB-1A applicants must also be planning to continue to work in their area of extraordinary ability.

What are my options if the EB-2 category is backlogged? Can I remain in the U.S.?

For foreign nationals born in India or China, there are currently backlogs in the EB-2 category and it is always possible that the category could become backlogged for all applicants. If a category is backlogged, it means that although applicants can file the I-140 Petition, they cannot concurrently file the I-485 adjustment of status until a green card becomes available. The availability changes each month based on the new visa bulletin from the Department of State. The filing of the I-140 Petition does not provide any status, so if an applicant wishes to remain in the U.S., they will need to have some other underlying status that allowed them to remain (H-1B, L-1, E-2, etc.) while they wait for a visa to become available.

Can my spouse and children apply with me?

Your spouse and children under 21 may apply for green cards as dependents on your green card application.