EB2 (National Interest Waiver)

DESCRIPTION:

Highly achieved aliens may seek a “National Interest Waiver” (NIW) petition, which falls under the second preference (EB2) category of employment-based immigration.  Individuals seeking the NIW petition request that the Labor Certification be waived because it is in the interest of the United States to retain such an individual without requiring the labor certification process. The NIW is often granted to those who have exceptional abilities and whose employment in the U.S. would greatly benefit the national interest.  The alien should therefore persuasively demonstrate that he or she seeks employment in an area of substantial interest and significance to the United States, such that the candidate’s proposed activity and work will prospectively benefit the U.S. on a national level.   The candidate should also persuasively demonstrate that requiring a Labor Certification would adversely affect the national interest.

Individuals seeking a NIW may self-petition. In other words, they do not need an employer to sponsor them, and may file with their Form I-140, Petition for Alien Worker directly without the need of proving a labor shortage first.

REQUIREMENTS for NIW:

In order to demonstrate that it is in the U.S. national interest to retain such a highly achieved alien, he or she should at least possess an advanced degree; either an academic or professional U.S. degree above the baccalaureate level or a foreign degree equivalent to the U.S. degree that is above the baccalaureate level.  However, the foreign national may not qualify for an NIW with only his or her academic or professional degree.   According to the requirements set forth in landmark New York State Dept. of Transportation case, the alien must satisfy the following three requirements:

  1. The prospective beneficiary must seek employment in an area of substantial, intrinsic merit;
  2. The proposed benefits of the beneficiary’s work is national in scope; AND
  3. The beneficiary must show that requiring a labor certification would adversely affect the U.S. national interest. To satisfy this requirement, the beneficiary should provide past evidence and documentation of his or her continued record of achievement.  To satisfy this third requirement, the beneficiary must also show that his or her skills, abilities and expertise can serve the U.S. national interest to a greater degree than the majority of other similarly trained or educated peers and colleagues in the beneficiary’s field.

If a foreigner does not have advanced degree, he or she may still apply national interest waiver if he or she can prove the possession of “exceptional ability”.  The “exceptional ability” may be established by meeting at least three of the criteria listed below.

  1. Official academic record showing that she has a degree, diploma, certificate, or similar award from a college, university, school or other institution of learning relating to her area of exceptional ability;
  2. Letters of recommendation documenting at least 10 years of full-time experience in her occupation;
  3. A license to practice your profession or certification for your profession or occupation;
  4. Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability;
  5. Membership in a professional association(s);
  6. Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations.

PROCESSING:

In order to prepare an NIW petition, it is necessary to collect an assortment of evidentiary support and documentation, containing the minimum qualifications that show that the alien is either an Advanced Degree Professional or an Alien of Exceptional Ability and meets all the criteria of the three-prong test as detailed above. These supporting documents include, but are not limited to:  letters of recommendation from experts in the candidate’s field; evidence of past accomplishments, which show projections of future benefits to the U.S. national interest; memberships in professional associations; awards; publications and publication requests; and multiple non self-citations by other experts, indicating that the alien has made an impact on the field.

Upon collecting all necessary evidence and documentation for the NIW, the petitioner must file a Form I-140, Petition for Alien Worker.  The petitioner must also provide the filing fee, made payable to the U.S. Department of Homeland Security. Premium processing is not available for NIW petitions.

Read more about NIW status and Visatopia’s NIW services:

Read about some of our successful NIW cases: