Employment Immigration: EB(2): National Interest Waiver

The National Interest Waiver (NIW) is part of the second
employment-based category (EB2) for aliens of exceptional ability
in sciences, arts or business and advanced degreed
professionals (M.A., M.S., M.E., M.D. or Ph.D.). Ph.D. students
also qualify.

An alien may apply for permanent residence status (Green Card)
and seek a waiver of the offer of employment by establishing that
his or her admission to permanent residence would be in the
national interest.

The national interest waiver is a good option for those who do not
wish to wait several years for labor certification or those who do
not wish to be tied to a specific employer during labor
certification.

The national interest waiver applicant sponsors him or herself
and is not required to have a job. NIW applicants may make
additional green card applications while their NIW petition is
pending. Furthermore, if the NIW applicant is employed, the
employer will not have knowledge of a pending NIW application.

The National Interest Waiver also applies to physicians.
Physicians who agree to work full time in a designated health
professional shortage area or in VA hospital and where a federal
agency or State department of public health has determined that
the physicians work is in the public interest for an aggregate of
five years (not including time in J1 visa status) can obtain an NIW
green card.

The National Interest Waiver or NIW is part of the second
employment-based category (EB-2) for aliens of exceptional
ability in sciences, arts or business and advanced degreed
professionals. In order to be considered an alien of exceptional
ability, the USCIS regulations require that at least three of the
following types of evidence be established:

An official academic record showing that 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;

Evidence in the form of 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
sought;

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

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

Evidence of membership in professional associations;

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

Someone who meets three of these requirements or has an
advanced degree and has a job offer from a U.S. employer can
process a labor certification under the EB-2 category.

However, someone who qualifies for the National Interest Waiver
is deemed to be of such value to the United States that he/she is
neither required to process a labor certification nor have a job
offer.

What are its major advantages?

The National Interest Waiver has the obvious advantage that a U.
S. sponsor is not required. The applicant sponsors herself or
himself based upon his/her outstanding achievements and
professional knowledge. Consequently, the applicant controls
her/his own fate. Furthermore, by avoiding the labor certification
process substantial time can be saved in the processing of the
petition. Some of the advantages of this category include:

Does not require a labor certification.

Does not require a permanent job offer in the United States.

Faster than the labor certification process. You can take
advantage of concurrent filing and obtain work
authorization and an advance parole document (allowing
you to travel internationally) much sooner than with labor
certification. You may also obtain work and travel
authorization for your spouse and children.

More flexible than the labor certification process. Compared
to the labor certification process, you can change jobs
much sooner and can change to a much broader range of
job opportunities.

You can self-petition. That is, the petition does not require
the signature of anyone at the university or company where
you work. In fact, in some cases, you can even be self-
employed.

Could I possibly qualify for the National Interest Waiver?

In addition to the requirements mentioned above, the USCIS will
consider the following factors in evaluating a request for
National Interest Waiver:

Whether the alien seeks employment in an area of
substantial intrinsic merit. Basically, is an important national
goal involved in the alien's particular field of endeavor?

Whether the proposed benefit will be national in scope.
Merely serving a regional or local interest is not sufficient.
The emphasis of this factor is on the existence of a national
goal that the alien will promote.

Whether the national interest would be adversely affected if
a labor certification would be required for the alien. The
first step in meeting this test is establishing that the alien
possesses unique knowledge, abilities, or experience that
set him or her apart from other professionals in the field.
The second step is establishing that the applicant will use
these unique attributes in an activity that will significantly
benefit her/his field of endeavor.

Information and/or documentation you will need for the
preparation and processing of the National Interest Waiver:

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)