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

What Are National Interest Waivers?

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.

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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".
  2. The petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.
  3. 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 INS 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 INS 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".

(A) Person with Exceptional Ability or Advanced Degree Holder

You must be a person with exceptional ability in the sciences, arts, or business, or an advanced degree holder.

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.

(B) Your Occupation is in the National Interest

The term "National Interest" has not been defined in the statute. However, 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

(C) Unique Knowledge and Abilities

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.

(D) Adversely Affects the Nation

The national interest must be adversely affected if a labor certification were required. You must submit sufficient proof that your contribution is significant, and the time taken for traditional labor certification process would severely impair national interest.

III. Information and/or documentation you will need for Green Card based on NIW:

  • Copy of Notice of Approval for your current status (H, J-1, F-1, etc.)
  • Current detailed resume including your employment/research history (names, addresses, and exact dates of employment.)
  • Copies of college/university degrees and transcripts or notarized copies
  • 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)
  • Copies of every article that you have written
  • Copies of any articles where your research has been cited
  • Copies of any academic or professional prizes you may have received
  • Annual Salary

Frequently Asked Questions about EB-5 Visas