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National Interest Waivers are one of the ways that employment-based individuals can file an immigrant petition to apply for permanent residency (or a ‘green card’) in the United States. There are three preference categories for all employment-based (EB) petitions, and a national interest waiver is an EB-2 petition.

Normally, individuals in the EB-2 category are those professionals who hold advanced degrees (a master’s or higher) and must file a PERM labor certification in order to apply for permanent residency. However, the National Interest Waiver provides a way to avoid the labor certification process and submit an I-140 immigrant visa petition directly with USCIS, a significant advantage.

Employment Based 2nd or 3rd Preference – EB-2/EB-3Applicants for a National Interest Waiver

Foreign nationals must meet the base requirement for the EB-2 category OR qualify as an alien of exceptional ability in order to be eligible to file a national interest waiver. Common occupations for applicants include physicians, researchers, scientists, entrepreneurs, and individuals with expertise in their field working in underserved communities.

The requirement for the EB-2 category is either an advanced degree (master’s or above) in a field related to their employment or a bachelor’s degree and five years of progressive experience related to the employment-based position.

To see the requirements for aliens of exceptional ability, please refer to our section on EB-1 Aliens of Extraordinary Ability petitions.

Criteria for EB-2

The statute is exceptionally broad on the definition of what foreign nationals are of such ‘national interest’ for the U.S. to exempt them from the labor certification process. Subsequent administrative decisions have refined the criteria used by USCIS to determine whether an individual qualifies for a national interest waiver. As defined most recently in the 2016 decision, Matter of Dhanasar:

  1. that the foreign national’s work would have substantial merit and national importance;
  2. that the foreign national is well positioned to advance the proposed endeavor; and
  3. 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.

If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

In clarifying the second prong, the Administrative Appeals Office for USCIS stated in the decision that “we consider factors including, but not limited to: the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.”

Generally, it is the third requirement that is the most difficult to establish. The Service’s determination rests on whether the burden and time delays involved in the labor certification process, and the possible identification of a minimally qualified U.S. applicant for the position, is outweighed by the potential national benefit to the United States.

Importantly, a petitioner (either the employer or the foreign national self-petitioning) must be able to demonstrate evidence of the foreign national’s past achievements justifies any projections that their work will be of future benefit to the United States. It is not enough to provide assurances of the foreign national’s possible achievements, but rather the petitioner must be able to show that the individual in question has already attained a level of specialized expertise and notable recognition for their work.

Approval of a National Interest Waiver

Once the I-140 petition is approved for a NIW EB-2 case, the foreign national will file a standard adjustment of status to become a permanent resident, or consular process (if abroad).

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