National Interest Waiver

A national interest waiver establishes that, while a foreign national may not have an offer of employment, it’s in the national interest for them to be granted a Green Card (which confers permanent residence status),

When a foreign national applies for a Green Card (which is permanent residence status) there is a requirement that they show an offer of employment. This requirement can be waived if the applicant establishes that their status as a permanent residence is in the national interest. This waiver applies to the employment based immigration category second preference. This is called the EB-2 category of waiver. Usually an applicant is required to supply proof of a job offer for permanent employment and an approved labor certification. The theory of a national interest waiver is that the applicant’s ability to reside in the United States is in the national interest and therefore the need for a job offer or a labor certification.

The applicant must qualify by having either an “exceptional ability” in the sciences, business or arts or an advanced degree. The endeavor proposed (there must be some endeavor proposed by the applicant) must be demonstrated to be both of national importance and have substantial merit. In addition, the applicant must provide proof that they are able to advance the endeavor to the benefit of the US. These are the reasons that the US would waive the labor certification and the requirement of a job offer. Interestingly, an employer in the US can file a national interest waiver on behalf of a foreign national. The applicant is not barred from filing other petitions for immigration under related appropriate categories while the national interest waiver is pending.

Recent Developments on National Waiver

The recent economic slowdown, the Great Recession (BLS analysis here) and the slow recovery has led to a challenging environment for the approval of national interest waivers. In addition, the political climate in the US has led to a tightening of immigration policy which further slows the approval of these waivers. There are two service centers which adjudicate the application process, one in Texas and one in Nebraska. Each of them have different approaches to the process which adds further complexity to an already challenging process. This is why it is highly recommended that anyone seeking a national interest waiver seeks the advice and counsel from an experienced immigration attorney. To learn how to cover legal bases read this article on our site.

It’s been discovered that NIW applications have some advantages over the usual employment-based immigrant applications. A national interest waiver is an attractive choice for researchers, postdoctoral research fellows, scholars, Ph.D. students, and other professionals with advanced degree because the requirements for a labor certification and permanent job offer are removed. However, the national interest waiver is still difficult but not impossible to achieve. As stated previously, the help of an experienced immigration attorney greatly improves the odds of success.

Benefits of the National Interest Waiver

  • No requirement of a Labor Certification (which in some cases takes two years to get)
  • No one else is required to sponsor the petition.

EB-2 National Interest Waiver Criteria

Unfortunately, this is no guidance from statutory standards or established rules in regard to the definition of national interest. Each case is decided individually on its own merits. Recently there has been a shift towards a stricter interpretation of what national interests are and whether they are met by the petition. Some applications that would have been approved several years ago are now being denied by the US government.

However, here are some questions that generally should be addressed by the application for the national interest waiver:

  • Will the admission benefit the US economy?
  • Will the admission improve the wages and working conditions of workers in the US?
  • Will the admission improve educational programs and training that benefits the

under-qualified workers and children in the US?

  • Will the admission help create affordable housing for the aged, young, or

poor who already reside in the US?

  • Will the admission lead to better usage of natural resources and improve the environment?
  • Is admission requested by a US government agency?
  • Will the admission improve health care in the US?

There are three factors considered when the US determines whether an applicant will significantly benefit the national interests:

1. Applicant seeks work in a subject of "substantial intrinsic merit"

2. Applicant's function must have a advantage which will be "national in scope"

3. Applicant must "serve the national interest to a substantially greater degree than would

an available US worker having the same minimum qualifications".

Foreign nationals must establish in their application that they have some and exceptional or unique experience, skill, or knowledge that sets them apart from the US workforce. In addition, there must be documentation regarding the applicant’s proficiency and competence sufficient to receive a national interest waiver. The potential and value of the foreign national’s contributions in the US are required in order for the national interest waiver to be granted. If the application includes the fact that the foreign national is a critical member of a team then there must be supporting documentation underlying how the team would be severely impacted if the foreign national were not part of the team

Working in a cutting-edge research or engineering isn’t necessarily enough to allow foreign graduate students who failed to satisfy the required time or experience to complete the degree should not qualify for NIW unless the subject matter in and of itself, is so significant that it proves to be in the national interest. Graduate researches will not all qualify for a national interest waiver.

Frequent Questions about the National Interest Waiver:

  • What is a National Interest Waiver?

Application of 2nd preference of the employment-established visa for immigrants, unlike the 1st preference, needs a documented job offer and labor certification. However, a foreign national may seek a waiver of these requirements by establishing that their admission to a Green Card would benefit the "national interest" of the US.

  • What are the differences between the petitions?

Usually, an employer needs to act as the case petitioner in the US, and they need to get a labor certificate before filing for the foreign national. The foreign national is this case is called the beneficiary. The qualifications of the foreign national needs to be established within the petition.

In a National Interest Waiver petition, the foreign national can petition themselves without an employer. The petition establishes the foreign national's qualifications, but also demonstrates that the qualifications satisfy the requirements for a National Interest Waiver.

The first is easier than the second to have granted because the additional need for the qualification of National Interest.

  • Who can file a petition for a National Interest Waiver?

A foreign national may file his or her own petition for the classification. An employer may also petition for the foreign national.

  • What does National Interest Waiver actually waive?

The National Interest Waiver waives the necessity of having an offer from an employer and a labor certification but doesn’t waive the basic requirements for 2nd preference classification. That is why after the second preference threshold is satisfied only then can a national interest waiver be adjudicated.

  • Who qualifies for the waiver?

Foreign nationals who have an advanced degree or comparable experience in professional areas OR exceptional skills in the arts, sciences, or business.

  • How is advanced degree defined for this purpose?

Basically, in this case, an advanced degree is defined as a degree above a bachelor (or an equivalent in another country). Top US graduate schools are assessed here.

  • What if an applicant only does not have an advanced degree but only a bachelor’s degree?

Five years of post-baccalaureate, progressively more difficult experience in the area plus the undergraduate degree will substitute for the advanced degree requirement. Another option is to provide documentation that the foreign national has some "exceptional ability."

  • How is “exceptional ability“defined for this purpose?

Foreign nationals with exceptional skills in the arts, sciences, or business that is not usually found in their area of expertise are able to qualify for this definition. Athletes may also be considered foreign nationals of exceptional skills in the arts.

Exceptional ability in the arts, sciences, or business can be established by a petitioner with documentation of at least 3 of the following:

  • A diploma, certificate, degree or equivalent award from an accredited institution of learning, college, school, or university in a subject related to the exceptional ability. This must be a record from the institute of learning in its official capacity.
  • Official letters from a former or current supervisor or employer documenting that the foreign national has ten or more years of experience full-time in their area of expertise or occupation.
  • Certification, license or professional accreditation for a pursuit or occupation related to the petitioner’s exceptional ability.
  • Documentation or other evidence indicating that the foreign national has received a salary, stipend or other compensation for skills or services that clearly demonstrate the exceptional ability.
  • Evidence that the foreign national is a member in good standing of a professional association related to their exceptional ability.
  • Receipt of awards, achievements, or other significant recognition that the foreign national has made advances or contributions to their field, industry or pursuit by business organizations, peers, professional associations, or governmental agencies.

Legal Help in Filing National Interest Waiver Information

The immigration environment in the US is ever-changing that is why it is so import to seek legal help when a foreign national does anything in the US including starting a business (look here for a great article on that) they should have an attorney experience with the law. When a foreign national applies for a Green Card (which is permanent residence status) there is a requirement that they show an offer of employment. An attorney can help you navigate these issues. This requirement can be waived if the applicant establishes that their status as a permanent residence is in the national interest. This waiver applies to the employment based immigration category second preference. This is called the EB-2 category of waiver. Some of the legalese is difficult to understand and so having an experienced lawyer assist the applicant is a key to success and time savings. Usually an applicant is required to supply proof of a job offer for permanent employment and an approved labor certification. The theory of a national interest waiver is that the applicant’s ability to reside in the United States is in the national interest and therefore the need for a job offer or a labor certification.

Having an attorney help the applicant determine if they qualify by having either an “exceptional ability” in the sciences, business or arts or an advanced degree. The endeavor proposed (there must be some endeavor proposed by the applicant) must be demonstrated to be both of national importance and have substantial merit. In addition, the applicant must provide proof that they are able to advance the endeavor to the benefit of the US. These are the reasons that the US would waive the labor certification and the requirement of a job offer. Interestingly, an employer in the US can file a national interest waiver on behalf of a foreign national. The applicant is not barred from filing other petitions for immigration under related appropriate categories while the national interest waiver is pending. In addition, attorneys know how to manage the expectations of applicants while they wait to hear the outcome of their case.

If you need help understanding the national interest waiver or have any other legal need, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law School and Yale Law School and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.