EB-2 National Interest Waiver (NIW)

For most people applying for Second Preference  Employment-Based immigration, i.e. EB-2 Visa, they must be sponsored by an employer and obtain a labor certification (PERM)  first.  However, if an alien can prove that the waiver of the job offer to him/her as well as the labor certification will be in the “National Interest” to the U.S., he/she may bypass the time-consuming and costly labor certification process, and apply for immigration without the sponsorship of an employer.

National Interest Waiver (NIW) applies to aliens of “exceptional ability” in the sciences, arts, or business, and advanced-degree professionals.  Such applicants with first-rate professional credentials may also be qualified for First Preference Employment-Based classification (EB-1) as an alien of extraordinary ability or outstanding professors or researchers.  National Interest Waiver has been an important feature of the Second Preference Employment-Based immigration.

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To be eligible for a National Interest Waiver, an alien must first meet EB-2 requirements, which are either holding an advanced degree or having exceptional ability in the sciences, arts, or business.

  1. Advanced Degree

“Advanced Degree” means an academic degree above that of the baccalaureate, which is usually a master’s degree. Alternatively, a baccalaureate degree plus five years of working experience in the applicant’s specialty will be considered the equivalent of a master’s degree.

  1. Exceptional Ability

“Exceptional Ability” requires that the alien has a degree of expertise above that ordinarily encountered in his or her field in order to obtain a National Interest Waiver.  The USCIS requires at least three of the following pieces of  evidence to establish the foreign person’s exceptional ability:

(1) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution;

(2) Letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

(3) A license to practice the profession or certification for a particular profession or occupation;

(4) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

(5) Evidence of membership in professional associations; and

(6) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations.

The USCIS will also consider comparable evidence as deemed appropriate to the applicant’s petition if those listed above cannot be provided.

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In 1998, the Administrative Appeals Office (AAO) handed down a decision in Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215.  In NYSDOT, the AAO defined a three-prong test as the legal standards for adjudicating National Interest Waiver petitions. Under this test, the foreign national was required to demonstrate that:

(1) the area in which the foreign national seeks employment is of substantial intrinsic merit;

(2) the prospective benefit of the foreign national’s services is national in scope; and

(3) the national interest would be adversely affected if a labor certification were required.

However,  on December 27, 2016, the USCIS designated Matter of Dhanasar, 26 I&N. 884 (AAO 2016) (“Dhanasar”) as a precedent decision to rescind the earlier “NYSDOT”, regarding national interest waivers under Section 203(b)(2)(B)(i) of the Immigration and Nationality Act, and introduced a new three-prong test for determining eligibility.  Under the current precedent decision, “Dhanasar”, the USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates by a preponderance of the evidence that:

(1) The alien beneficiary’s proposed endeavor has both substantial merit and national importance;

(2) The beneficiary 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.

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In general, the AAO’s Matter of  Dhanasar provides more flexibility for National Interest Waiver applications and certainly a greater clarity in terms of the evidence required for NIW qualifications.  As such, “Dhanasar” helps advance the goal of broad waiver provision to benefit the United States.

It should be emphasized that the Dhanasar decision essentially renders it possible for startup founders (entrepreneurs) to qualify for National Interest Waiver. Under “Dhanasar”, entrepreneurs no longer have to worry about demonstrating that his/her proposed benefits would be national in scope and can thus focus on how his/her proposed endeavor will have great potentials to employ  workers and help promote the U.S. economy.

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With the new framework for adjudicating National Interest Waiver, it becomes ever more important for the applicant and  attorney to work closely together to prepare the application most persuasively in accordance with the new regulatory requirements.  To accomplish this goal, the documents to be prepared may very well be wide-range can case-specific.  It may also be to the foreign national’s best interest to explore other options for immigration applications, e.g. the first-preference route, or to simultaneously apply for labor certification to maximize chances for obtaining permanent residency.

The application for National Interest Waiver is filed with Form I-140. The applicant must file all the documents to prove the above-referenced criteria.  Once the National Interest Waiver is approved, the applicant can file Form I-485 to the USCIS for adjustment. The applicant can also apply for working permit and advance parole for traveling abroad.

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To help you best understand your route and chance of getting a National Interest Waiver, our firm will first evaluate your resume for no charge and commitment at all. The evaluation is based on our extensive experiences in the successful handling of EB-1 and EB-2 cases over the past 20+ years.  We will also discuss with you the merits and the weakness, if applicable, of your case to minimize EB-2 visa processing time.  To have our attorneys evaluate your credentials first, please visit the “FREE EVALUATION” section of this page for details.
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