Locke Immigration Law

National Interest Waiver

National Interest Waiver

National Interest Waiver: Comprehensive Guide for a Successful Filing

Locke Immigration Law offers this comprehensive guide to help you understand the National Interest Waiver (NIW) process and assess whether you could have a successful filing now or later in your career.

Overview of the National Interest Waiver

The National Interest Waiver (NIW) is a special pathway under the EB-2 immigrant visa category for foreign nationals with exceptional ability or for those who hold advanced degrees to obtain a green card without an employer first filing a labor certification application. Someone can sponsor their own EB-2 NIW petition, or an employer can file on behalf of a current or future employee.

Eligibility Criteria for the NIW

To qualify for a National Interest Waiver, you must meet the following requirements:

  1. You hold an advanced degree or you possess exceptional ability.
  2. You demonstrate that your work is in the national interest of the United States.
  3. You show that waiving the labor certification requirement would benefit the United States.

Advanced Degree

An advanced degree is a master's degree, a Ph.D., or another terminal professional degree from the U.S. or from another country.

Exceptional Ability

“Exceptional ability” refers to a degree of expertise significantly above that ordinarily encountered in the field of arts, sciences, or business. If you do not have an advanced degree, you must show your exceptional ability in the sciences, arts, or business. USCIS conducts a "final merits determination," where it decides whether you "possess a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." So at this point of the analysis, USCIS reviews whether the "exceptional ability" criteria that you have demonstrated are actually impressive in that field, and whether there is enough to distinguish you from your peers.

You must provide at least three of the following:

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; Letters from your current or former employers documenting that you have gained at least 10 years of full-time experience in your occupation; A license to practice your profession or certification for your profession or occupation; Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability; Your membership in a professional association; Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations; Other comparable evidence of eligibility.

National Interest

You must show that the work you propose to do will significantly benefit the United States. Your work could have the following benefits:

  • Improving the U.S. economy;
  • Improving wages and working conditions for U.S. workers;
  • Improving education and training programs for American children or under-qualified workers;
  • Improving healthcare;
  • Providing more affordable housing;
  • Protecting the environment and making more productive use of natural resources;
  • An interested U.S. government agency has requested you.

Waiver of the Labor Certification Requirement

You must show that your proposed work is so valuable that it would be worth bypassing the labor certification process, which is designed to make sure there’s no U.S. worker who is minimally qualified and available to take the position instead of a foreign worker.

Essentially, you must show that even if there are “good enough” American candidates who meet the basic qualifications for your proposed job, the U.S. government should still give you a green card to do the job without first making the employer consider any other candidates, because you are a world-class talent who would outperform them, and having a world-class talent do the work would trigger a ripple of positive consequences in the United States.

Since the NIW path does not require a job offer or a sponsoring employer, it is one of very few avenues to get an employment-based green card without the involvement of an employer. Conversely, labor certification applications cannot be self-sponsored. Each must be centered around a job offered by a U.S. employer. If your EB-2 NIW petition is self-sponsored, you have the additional challenge of demonstrating that you would have valuable work to do, even if you do not yet have an employer.

The Three-Prong Test

To determine if an applicant meets the NIW requirements, the United States Citizenship and Immigration Services (USCIS) uses a three-prong test set forth in the Matter of Dhanasar decision:

  1. Substantial Merit and National Importance: You must demonstrate that your work has substantial merit and national importance. The work can be within the areas of business, science, technology, culture, health, or education. Usually, this will be very narrowly defined. Rather than “science,”
  2. Applicant’s Impact on the Field: You must show that they are well-positioned to advance their work and have a significant impact on the field.
  3. National Interest Justification: The applicant must prove that it would be beneficial to the United States to waive the labor certification requirement.

NIW Application Process

STAGE 1: I-140 Petition:

You must file an I-140 petition documenting your ability to fulfill the necessary criteria inherent to the EB-2 NIW category. USCIS has recently introduced 45-day Premium Processing, and regular processing has also sped up notably over the past year.

STAGE 2: Adjustment of Status or Immigrant Visa Process

After your petition is approved, there are two paths to finish the process: If you already have a valid nonimmigrant status in the U.S., you and your family may be able to file I-485 adjustment of status applications from within the United States. You can apply for interim work and travel authorization while you wait for your I-485 applications to be processed.
If you live outside the United States or your current temporary status is not conducive to filing from within the United States, you and your family can pursue immigrant visas from outside the United States.

Even after your I-140 petition is approved, you cannot pursue the next step until immigrant visas become available in your category for your priority date (the date your I-140 petition was filed). Currently, the EB-2 worldwide category is backlogged by more than a year, and backlogged much further for people born in India and China.

Required Documentation

Applicants must provide extensive documentation to support their NIW petition, such as:

  • Resume or CV
  • Diplomas and transcripts
  • Evidence that you meet the exceptional ability criteria
  • Letters of recommendation from experts in the field
  • Evidence of your proposed work and its national importance
  • Evidence of your positive impact on the field

Frequently Asked Questions

  1. What is a National Interest Waiver? The National Interest Waiver is a special category within the EB-2 I-140 immigrant petition for foreign nationals with advanced degrees or exceptional ability to pursue a green card without a job offer or labor certification.
  1. What are the eligibility criteria for the NIW? To be eligible for the NIW, applicants must hold an advanced degree or possess exceptional ability in their field, demonstrate that their work is in the national interest of the United States, and show that waiving the labor certification requirement would benefit the United States.
  1. What is the three-prong test for NIW? The three-prong test consists of substantial merit and national importance, the applicant's impact on the field, and national interest justification.
  1. What is the NIW green card process? The NIW application process involves filing an I-140 immigrant petition with supporting evidence, and later filing an I-485 adjustment of status application from within the U.S., or pursuing an immigrant visa through a U.S. Consulate overseas.
  1. What documentation is required for the NIW petition? You should provide your attorney with your résumé or CV, evidence of an advanced degree or your exceptional ability, letters of recommendation, evidence of your work and its national importance, and proof of your impact on the field. Your attorney can review your academic and career history with you and help you determine what evidence to include or exclude.
  1. How long does it take to process a NIW petition? With Premium Processing, USCIS will take action on a petition within 45 days. With regular processing, USCIS has become faster over the past year and is likely to take action on the petition in less than a year, sometimes much less.
  1. Can I include my spouse and children in my NIW green card process? Your I-140 petition is yours alone, but your spouse and unmarried children under 21 years old can get their own green cards as your derivative beneficiaries. They must file their own I-485 adjustment of status applications or apply for their own immigrant visas at a U.S. Consulate overseas.
  1. Do I need a job offer to apply for an NIW? No, you do not need a job offer to file an I-140 petition under the NIW. You can pursue an NIW with or without a sponsoring employer.
  1. What is the difference between the NIW and other EB-2 categories? The main difference is that the NIW does not require an employer to first win a labor certification application. You can get an NIW even if there are American workers who meet the basic requirements for the job you intend to do in the United States.
  1. Can I change jobs while my NIW application is pending? The NIW is based on your future professional plans, so you do not need to be present in the U.S. or working for any specific employer beforehand. However, if an employer is sponsoring your petition and you leave that employer, your petition will not be viable. Consult with your immigration attorney to discuss your specific situation before making any career moves.
  1. Can I file an NIW if I am currently living in the U.S. on a nonimmigrant visa? Yes, you can file an NIW while on a nonimmigrant visa, such as an H-1B or F-1 visa. Depending on your circumstances, it may or may not be possible to transition directly from your temporary status to lawful permanent resident (green card holder). If it’s not possible to adjust status within the U.S., you may be able to complete your green card process overseas.
  1. Can I work in the United States while my NIW petition is pending? You may continue working in the U.S. under your current nonimmigrant status. When your I-485 application is filed, you can also apply for an Employment Authorization Document (EAD) so that you can get interim work authorization while you are waiting for your green card to be approved.
  1. What happens if my NIW petition is denied? If your NIW petition is denied, you may wish to appeal the decision, file a new petition, sue the government, or explore other immigration options. Your immigration attorney can help you decide the best path forward.
  1. What is the success rate for NIW petitions? The success rate for NIW petitions varies depending on the strength of the case and the quality of the petition filing. The government does not release statistics on the NIW approval rate. An experienced immigration attorney can help increase your chances of success.
  1. Can I self-petition for a NIW? Yes, you can self-petition for an I-140 petition under the National Interest Waiver. You do not need an employer to sponsor your petition.
  1. Is there a quota for NIW petitions? There is no specific quota for NIW petitions, but they fall under the EB-2 visa category, which has an annual limit of 140,000 immigrant visas. If more people qualify for an immigrant visa than there are green cards available in their category, those with a later priority date will wait in a backlog until there become eligible to take the final step to get their green card. Check the Visa Bulletin published by the U.S. Department of State for current wait times.
  1. Can I expedite my NIW application? Premium processing, which expedites the processing time to 45 calendar days, is available for Form I-140 for an additional fee of $2,500. However, getting the I-140 petition approved faster may not result in a faster green card process overall, because it does not affect your Priority Date, which is the date the I-140 petition was filed. There is no Premium Processing option for the I-485 adjustment of status application or immigrant processing through a U.S. Consulate overseas.
  1. What is the role of an immigration attorney in the NIW process? An effective immigration attorney will help you determine your eligibility, prepare a strong petition, and guide you through the application process to improve your chances of success.
  1. Can I file for an NIW if I already have a pending EB-2 application? Yes, you can apply for a NIW even if you have a pending EB-2 application. This could be valuable if your existing I-140 petition was sponsored by an employer who is no longer offering you a permanent job. Normally, your NIW petition can have the same Priority Date as your earlier approved I-140 petition. Consult an immigration attorney to discuss the best course of action for your situation.
  1. What is the validity period of a NIW green card? The NIW green card grants you permanent residence in the United States, which is indefinite as long as you maintain your status and meet the residency requirements. You can retain your green card even after you eventually stop working in your field. After obtaining a green card, you may be eligible to apply for U.S. citizenship through naturalization once you have met the residency and other requirements.
  1. Do I need to maintain a nonimmigrant status while my NIW petition is pending? No, but your pending NIW petition does not give you the right to live and work in the U.S. in the meantime. If you want to live and work in the U.S. before you become a lawful permanent resident, you will need a nonimmigrant status that allows you to do so.
  1. Can I apply for a NIW if I have a criminal record? Having a criminal record may affect your eligibility for a green card, even if you are able to get an approved EB-2 NIW petition. Before you pursue an NIW petition, consult with an immigration attorney to evaluate your specific circumstances.
  1. Is it possible to apply for a NIW based on a combination of education and experience? Yes, it is possible to apply for a NIW based on a combination of education and experience, if you can demonstrate that you possess exceptional ability in your field and meet the other eligibility criteria. An experiential credential evaluation cannot substitute for a master’s or higher degree to qualify for an NIW based on an advanced degree.

For more information and guidance on the National Interest Waiver process, contact the experts at Locke Immigration Law. We are dedicated to helping you navigate the complexities of U.S. immigration law and achieve your goals.