EB-2 National Interest Waiver
Path to Green Card for Qualifying Work
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 of "substantial merit" and benefits the U.S. In addition, the individual must show he or she has the background necessary for success in related future work.
The NIW is suitable for postdoctoral researchers and early career scientists, including entrepreneurs. However, it is not limited to those in the sciences: artists, teachers, mental health professionals, and many other occupations may qualify as long as they meet the requirements.
The formal requirements for the NIW are as follows:
- The foreign national must be a professional with an advanced degree or extraordinary ability. The NIW is used with the second preference employment-based category. Therefore, the threshold requirement is a master's degree or meeting three criteria for "exceptional ability."
- The proposed endeavor must be of substantial merit and national importance. This focuses on the specific endeavor that the foreign national proposes to undertake. Merit may be demonstrated in a range of areas such as business, entrepreneurship, science, technology, culture, health, or education. Further, an endeavor need not be national in scope geographically to be in the national interest. Job creation in a depressed area, for example, may satisfy this requirement.
- The beneficiary must be well-positioned to advance the proposed endeavor This requirement focuses on the individual's qualifications and record of achievement. Relevant factors include the individual's education; record of success in the area; existence of a model or plan for future activities; and the interest of potential customers, users, investors, or other relevant entities or individuals.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. A key factor is whether the United States will benefit from the foreign national's contributions. Note this is not a comparative measure; the individual may be approved on the strength of his or her own merits, even if other qualified U.S. workers are available. Other factors are whether the nature of the proposed endeavor or the foreign national's qualifications make labor certification impractical; and whether the national interest in the foreign national's contributions is sufficiently urgent to warrant forgoing the labor certification process.
- 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 foreign national, 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.
- Self-employed individuals can petition in this category.
- An NIW case is in the EB-2 category. Therefore it is less suitable for nationals of countries with retrogression in the EB-2 category such as India and China.
- Employees of large and well-established for-profit businesses may have a difficult time meeting the requirements.
- 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.
In late 2016, the USCIS changed to the present analytic framework for NIW cases. Adjudications seem to favor high-skilled practitioners in every field, no matter their level of relative accomplishment in the field as long as they meet the requirements.
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.
National Interest Waiver approval requires showing that the foreign national has the background to begin or continue a project in an important field, one that will benefit the U.S. However, the Immigration Service's interpretation of its terms (e.g. "national importance" or "well-positioned") varies from case to case and year to year. Therefore, professionals considering a NIW petition should evaluate their credentials and immigration objectives with a knowledgeable and experienced immigration attorney.