National Interest Waiver

A National Interest Waiver (NIW) is one of the two types of employment-based green card categories that allow a foreign national to self-petition (i.e., an employer sponsor is not required). The NIW petition falls under the employment-based second preference (EB-2) visa category, but allows the foreign national to seek a waiver of a permanent job offer and an approved PERM labor certification by establishing that his/her employment in the U.S. is in the national interest.

The eligibility requirements are less strict than the criteria for EB1A (first preference category for individuals with extraordinary ability) visas, which is the other type of employment-based green cards that allows foreign nationals to self-petition. The NIW is a good option for scholars, researchers, scientists, postdocs, engineers, entrepreneurs, artists, and professionals who can demonstrate the impact of their work.

To qualify for the NIW visa, the foreign national must have an “advanced degree” or its equivalent (Bachelor’s degree and 5 years of Experience), or demonstrate “exceptional ability” in the sciences, arts, or business:

• If the applicant is applying based on an “advanced degree”, the applicant must provide either:
  • an official degree certificate demonstrating that he/she holds a U.S. advanced degree (Master’s degree or above) or a foreign degree that is equivalent to a U.S. advanced degree; or
  • an official degree certificate demonstrating that he/she has a U.S. Bachelor’s degree or its foreign equivalent and letters from current and/or past employers demonstrating that he/she has at least five years of progressive work experience in the field;
• If the applicant does not have an advanced degree or its equivalent and is applying based on his/her exceptional ability, the applicant must meet at least 3 of the following criteria:
  • Have an official academic record demonstrating that he/she has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to his/her area of exceptional ability;
  • Have letters documenting at least 10 years of full-time experience in his/her occupation;
  • Have a license or certification in his/her profession;
  • Have evidence that he/she has commanded a high salary or other remuneration for services that demonstrates his/her exceptional ability;
  • Have membership in a professional association(s);
  • Have achievements and significant contributions in the field that have been recognized by his/her peers, government entities, professional or business organizations;
  • Other comparable evidence of eligibility is also acceptable;

In addition to proving that the foreign national has an “advanced degree” or “exceptional ability”, the applicant must also satisfy the following three-prong test set forth in a 2016 United States Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016):

• Demonstrate that his/her proposed endeavor has both substantial merit and national importance;
• Demonstrate that he/she is well-positioned to advance the proposed endeavor; and
• Demonstrate that on balance, it would be a benefit to the United States to waive the normal requirements of a job offer and PERM labor certification;

Obtaining a national interest waiver can be a very complex process as the applicant has the burden of proof to establish that it is in the national interest of the United States that he/she be granted exemption from the labor certification process. Just listing the applicant’s achievements is not enough. It is important to provide strong supporting evidence to establish that the applicant qualifies for this discretionary waiver. An experienced immigration attorney can advise and assist you in preparing a strong persuasive case. If you are interested in applying for permanent residency based on a National Interest Waiver, the Lyttle Law Firm can assist you in this process. For years, our law firm has successfully helped foreign nationals obtain employment-based visas. We work collaboratively with clients across the country and overseas, providing high quality and diligent representation. For a confidential consultation, please call (512) 215-5225 or contact us online.