EB-2 National Interest Waiver

Path to Green Card for Qualifying Work

 

Introduction
The “National Interest Waiver" (NIW) is a provision of the second preference (EB-2) employment-based immigration category. It allows a beneficiary to bypass the labor certification process and self-petition for permanent residence based on professional achievements in the field of endeavor. This waiver is available if the applicant's work is in the national interest and he has a good record of achievements in his field. The NIW is particularly suitable for postdoctoral researchers and early career scientists with some profile in the field. However, it is not restricted to those in the sciences.

NIW Standards
A summary of National Interest Waiver qualifications drawn from precedent cases is as follows:

• The foreign national must be a professional with an advanced degree. The NIW is used with the second preference employment-based category. Therefore, the threshold requirement is a master's degree or equivalent.
• The alien's employment must be in an area of substantial intrinsic merit. The importance of an area of intrinsic merit is “immediately apparent,” according to the most commonly cited case. In practice, most occupations will satisfy this requirement.
• The proposed benefit must be national in scope. If the beneficiary can demonstrate that the impact of his work goes far outside of the geographic area of his employment, the benefit is arguably national in scope. For example, the engineer in well-known case worked on New York state bridges only, but since they were used by people from around the country, his work was deemed "national in scope."
• The national interest would be adversely affected if a labor certification were required for the alien. In order to meet this final and most challenging requirement, the individual must prove that “the significant benefit derived from [his] participation in the field of endeavor considerably outweighs national interest inherent in protecting U.S. workers through the Labor Certification process.” In order to do this, the foreign national must show a relatively high degree of achievement and recognition in the field and some influence on the field as a whole.

Advantages

• The NIW petition does not require a labor certification.
• No job offer is required; therefore, the beneficiary can self-petition.
• If there is no visa backlog, the beneficiary can file his or her I-485 adjustment of status (and apply for a work authorization card and travel document) concurrently with the I-140 immigrant petition
• The NIW process is much faster than EB-2 labor certification via the PERM process; Employment authorization and travel documents arrive much more quickly for the alien, spouse and children, and the overall case processing time is shortened by months, sometimes years.
• Since the NIW is a self-petition route, the foreign national’s job prospects are relatively unrestricted.
• In some cases, the beneficiary can be self-employed.

Disadvantages

NIW approval requires that the beneficiary document past impact on the field as a whole. Even publication in a prestigious journal such as Nature may not satisfy the requirement if the citation numbers are not high. Since the adjudication policy the USCIS applies to NIW cases remains quite flexible and often changes, the outcome of NIW petition can be less predictable than the labor certification process.

Recent Trends
In order to meet the standard for NIW approval (the "substantially greater degree" test) the beneficiary must be shown to be more qualified than others in the field. Recently, neither unique expertise nor a rare combination of capabilities has been acceptable evidence of "greater" qualification. (Please note that a shortage of Americans in the field has never been qualifying evidence of eligibility for the NIW.)

USCIS now focuses on "unsolicited" evidence of impact such as citation statistics or publicity featuring the beneficiary, and showing his/her prominence and influence in the field. Consequently, letters of support from others in the field, no matter how distinguished, are of diminishing help. Even letters of support from U.S. government administrators must specify impact in concrete terms.

Application Procedure
To obtain a National Interest Waiver, the beneficiary must file a Form I-140 petition, Form ETA 9089, and supporting documents directly with USCIS. The beneficiary does not have to file anything with the Department of Labor. In addition, if a visa number is available, the beneficiary can concurrently file I-485 with I-140, and can also apply for employment authorization and travel document.

Processing time for NIW cases depends on the work load at the specific USCIS service center at which the petition is filed. Current processing times by the Service Centers can be found here.

Conclusion
The National Interest Waiver approval turns on being able to show qualifying impact in the field. As the Immigration Service’s interpretation of “impact” varies from case to case and year to year, professionals considering a NIW petition should evaluate their credentials and immigration objectives with a knowledgeable and experienced immigration attorney.

 

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