EB-2 National Interest Waiver
National interest waivers (NIWs) are usually granted to those who have advanced degrees* or exceptional ability** and whose employment in the U.S. would greatly benefit the nation and the Labor Certification (L/C) can be waived because it is in the interest of the United States. The waiver is most frequently used by postdoctoral researchers, but may be available for those in the science, arts or business with advanced degrees or exceptional ability.
*1. advanced degrees: The job must require an advanced degree and NIWs must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).
**2.exceptional ability: NIWs must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”
– NIW Requirements
NIWs must meet at least three of the criteria below and demonstrate that it is in the national interest that you work permanently in the United States.
1. Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
2. Letters documenting at least 10 years of full-time experience in your occupation
3. A license to practice your profession or certification for your profession or occupation
4. Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
5. Membership in a professional association(s)
6. Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
7. Other comparable evidence of eligibility is also acceptable.
New analytical framework
The USCIS has established a new analytical framework to assess eligibility for NIW following by Matter of Dhanasar issued on December 27, 2016.
Now USCIS may grant a National Interest Waiver if NIWs demonstrate:
1. The foreign national’s proposed endeavor has both substantial merit and national importance;
2. The foreign national is well positioned to advance the proposed endeavor;
3. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements
– NIW Process
Because of the heightened evidentiary standard, the NIW requires more than a regular EB-2 petition. There are two steps of filing for permanent residence (Green card) with an NIW;
1. The I-140 Immigrant Visa Petition (together with corresponding evidence to establish that the foreign person’s admission to the United States for permanent residency would be in the national interest) and
2. The application for permanent residence (Green Card Application), which may be either an I-485 Application for Adjustment of Status for persons in the U.S. or a Form DS-260 Immigrant Visa Application for persons abroad.
Note:
1. After the visa petition (form I-140) is approved and an immigrant visa number is available (your Priority Date has become current), the employee applies for permanent residence (Green card application), either with USCIS in the U.S. or through the consulate abroad when you are not in the U.S.
2. When the I-485 application for permanent residence is filed, the employee may apply for a work permit and a travel permit together with the I-485.
3. The employee’s spouse and unmarried children under 21 can apply for permanent residence, whether they are in the United States or abroad. If they are in the United States, they can apply for work permits and travel permits, too.
Q & A
1. Can NIWs apply for Form I-140 and Form I-485 concurrently?
Yes. Concurrent filing is available to individuals eligible to adjust to permanent resident status at the time an I-140 is filed on their behalf to classify them in the EB-1 category (alien of extraordinary ability, outstanding researcher, multi-national manager); the EB-2 category (advanced degree professional, national interest waiver; alien with exceptional ability); or the EB-3 category (professional or skilled worker). However, an immigrant visa number must be immediately available, meaning that the priority date must be current.
2. Can NIWs sponsor himself?
Yes. NIWs may seek a waiver of the otherwise required offer of employment, corresponding labor certification (self-petition).