National Interest Waiver

This page deals with an EB-2 through the National Interest Waiver process. This is an Employment Based green card category and is available to individuals who are a member of professions holding an advanced degree or those who have exceptional ability.  You must also meet the 3 prong requirements outlined below to be eligible.

The employer can petition but the applicant can also self petition.

The first step in the process is to assess whether or not you qualify under the advanced degree criteria or Exceptional Ability.  This is an either or test (either advanced degree or Exceptional ability).

Step 1 in National Interest Waiver Assessment:

1. Advanced Degree (Master’s Degree or Higher or a BA with 5 years experience)
The first step is to see if you qualify for an Advanced degree. This can either be a Master’s Degree or a BA with 5 years of progressive experience). The job you apply for must require an advanced degree and you must possess such a degree or its equivalent. (Keep in mind that it is the JOB that must require the degree. You must have the degree also but the assessment will be whether the job requires it.

If you are applying under the advanced degree category, documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty is required.

Exceptional Ability
You can also qualify under this category if you do not have an advance degree but you have Exceptional ability.  You must be able to show exceptional ability in the sciences, arts, or business.  Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”  Note that this is different from extraordinary ability.

If you are applying under the exceptional ability category, you must meet 3 of the following criteria.

• Official academic record 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
• Letters documenting at least 10 years of full-time experience in your occupation
• A license to practice your profession or certification for your profession or occupation
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
• Membership in a professional association(s)
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
• Other comparable evidence of eligibility is also acceptable.

Step 2 in National Interest Waiver Assessment: (this is the hard part):

2. Meeting the Dhanasar Requirements on the Merits

If you meet one of the two above criteria, you move to the next step of assessing the merits under the NIW requirements described below.

If you are seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States.  Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national.  Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker. The above criteria has been met, a relatively new case (Dhanasar) lays out three requirements for a National Interests Waiver.

1. The proposed endeavor has both substantial merit and national importance;
2. The foreign national is well-positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

To qualify for an EB-2 visa, you or your employer must file a Form I-140, Petition for Alien Worker. An NIW petition can be filed by an employer or can be a self petition.  If the green card category is current for the applicant, the I-485 can also be filed at the same time as the I-140.  In addition, the applicant can apply for work authorization and the ability to travel.  Premium processing is also now available for this petition.

These are green cards so as long as you meet the residency requirements and do not violate the terms of the visa you can keep them for life.

Your spouse and children under 21 can all join in the green card process.  During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD).

Find more information on various immigration topics discussed in our blog.

Find more information on various immigration topics discussed in our blog.

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