Employment Visa
> National Interest Waiver
Employment Based Immigration – Eb-2 (The National Interest Waiver)
The National Interest Waiver is an exception to the labor certification requirement usually required of those seeking to immigrate under the Eb-2 category in addition to the requirement that the foreign national be a member of the profession who holds an advance degree or be a person of exceptional ability. Under the power created by the Immigration and Nationality Act (INA), the Attorney General has the power to waive the labor certification requirement under Eb-2 when it is deemed to be in the national interest. However, the term “national interest” is not specifically defined by either in the INA or by the USCIS.
Eligibility Criteria
1. National Interest Waiver is only available for those individuals who qualify under the Eb-2
category of employment based immigration.
2. The Eb-2 category applies to foreign nationals that have either an advanced degree or
demonstrate exceptional ability in their area of practice.
category of employment based immigration.
2. The Eb-2 category applies to foreign nationals that have either an advanced degree or
demonstrate exceptional ability in their area of practice.
The Three-Prong Test for Granting a National Interest Waiver
1. The foreign national must seek employment in the United States that is in an area of considerable intrinsic worth.
2. The proposed benefit from the foreign national’s employment must be national in scope.
3. The national interests of the United States would not be as well served if the position wasgiven to a U.S. worker with the same minimum qualifications.
In order to demonstrate that the foreign national would serve the national interest better than a worker in the U.S with the same minimum qualifications, the foreign national must evidence that he/she has a demonstrated record of specific prior achievements.
2. The proposed benefit from the foreign national’s employment must be national in scope.
3. The national interests of the United States would not be as well served if the position wasgiven to a U.S. worker with the same minimum qualifications.
In order to demonstrate that the foreign national would serve the national interest better than a worker in the U.S with the same minimum qualifications, the foreign national must evidence that he/she has a demonstrated record of specific prior achievements.
Proof of Specific Prior Achievements
In case law, the Administrative Appeal Unit has outlined some things that do not suffice in proving specific prior achievements.
This list includes:
This list includes:
1. Assertion of a labor shortage;
2. The mere possession of useful skills or a unique background or experience;
3. Simple exposure to advanced technology;
4. Special or unusual knowledge or training.
In order to demonstrate that the U.S. national interest would not be negatively affected if labor certification was granted to the foreign national, the individual must prove that his or her contributions to the field that have greatly exceeded the achievements and significant contributions made by others in the same field. This can be accomplished by providing evidence of past achievements that validate projections of proposed future benefits from this individual. Therefore, the candidate must have adistinguished ability that will serve the national interest to a greater degree than the majority of the candidate’s colleagues, and he or she must have a past history of achievement that can be demonstrated to have had an impact on the field as a whole. Thus, because the USCIS is looking for future benefits that the individual will have on the national interest, the foreign national must be able to demonstrate these future benefits by providing an outstanding record of specific past achievements.
2. The mere possession of useful skills or a unique background or experience;
3. Simple exposure to advanced technology;
4. Special or unusual knowledge or training.
In order to demonstrate that the U.S. national interest would not be negatively affected if labor certification was granted to the foreign national, the individual must prove that his or her contributions to the field that have greatly exceeded the achievements and significant contributions made by others in the same field. This can be accomplished by providing evidence of past achievements that validate projections of proposed future benefits from this individual. Therefore, the candidate must have adistinguished ability that will serve the national interest to a greater degree than the majority of the candidate’s colleagues, and he or she must have a past history of achievement that can be demonstrated to have had an impact on the field as a whole. Thus, because the USCIS is looking for future benefits that the individual will have on the national interest, the foreign national must be able to demonstrate these future benefits by providing an outstanding record of specific past achievements.
If, based on this information, you are still uncertain whether your credentials qualify you for theNational Interest Waiver or are unsure of your likelihood in being granted this type of visa, please feel free to email our office with a copy of your resume or curriculum vitae to us@usemin.com The attorneys at our office will then review your qualifications and reply to you with a written evaluation within two working days.
This evaluation is free and does not create any obligation on your behalf to continue utilizing our services following the receipt of this evaluation.
This evaluation is free and does not create any obligation on your behalf to continue utilizing our services following the receipt of this evaluation.
Important FAQs
What is National Interest Waiver (NIW)?
A majority of employment based immigrations are employer sponsored, which require, among other things, a permanent job offer from U.S. employer. One exception to this general rule is National Interest Waiver. To put it in a simple way, National Interest Waiver allows an alien to apply for green card without permanent
Who are eligible for NIW petition?
NIW is available only to employment based second preference immigration petitions (Eb-2). This category requires that the alien beneficiary possess either an advanced degree (Masters Degree or above) OR exceptional ability. Therefore, you are statutorily eligible for NIW petition if you have at least a Master degree or you can establish exceptional ability with convincing evidence.
What are the advantages of NIW?
Compared to regular Eb-2 petitions, NIW has two major advantages: first, a permanent job offer is not required; and second, a labor certification is not required. Accordingly, a qualified alien can file NIW petition on his/her own, and does not have to go through the dubious Labor Certification process.
I have a Masters degree, can I apply for NIW?
It depends. An advanced degree or exceptional ability is only the statutory requirements for NIW eb-2 petition. In addition to meeting the statutory requirements, you also need to prove that granting you permanent residence without requiring a labor certification is in the U.S. national interest.
How can I establish that granting me permanent residence is in the national interest?
The legal standards for NIW adjudication were set by an AAU (The Administrative Appeals Unit) case law In re New York State Dept. of Transportation EAC 96 063 51031, (AAU, Aug. 7, 1998). This case set a three prong test: first, whether petitioner seeks employment in an area of substantial intrinsic merit; second, whether the proposed benefit of petitioner’s work is national in scope; and third, whether the national interest would be adversely affected if a labor certification were required. USCIS rarely denies an NIW case for failing to satisfy the first or second prong, but often raises questions based on the third prong.
Is National Interest Wavier green card only for scientists and researchers?
No, this is not true. Although a majority of NIW petitioners are researchers in various fields of science, the law does not exclude individuals working in any specific field or profession. In practice, USCIS has granted national interest waiver to engineers, actors, musicians, painters, movie directors, writers, educators, entrepreneurs, chefs, and etc.
How do I know if I am qualified for NIW petition?
Now you know at least something about NIW from our website. If you are somehow wondering whether your credentials qualify you to file an NIW petition, or how good is your chance to get approved, email your resume or curriculum vitae to info@usemin.com. Attorney U.J. Suk will review your credentials and get back to you with our evaluation within two work days after we receive your inquiry. The evaluation is free and you are under no obligation to retain us after the evaluation.
What am I expected to see in your evaluation?
The information provided in our evaluation may be different case by case because we do not use a broad brush template to answer every request. Each individual case is unique. But basically my evaluation letters includes the following information: (1) whether your credentials meet the minimum NIW requirements; (2) whether your case has a reasonable chance to be approved; (3) if, in my honest judgment, you are not qualified for NIW, what other options you have to obtain to green card.
What can a lawyer do for me in my NIW petition?
In immigration petitions, just as in any areas of law, attorney’s experience and professional expertise can make a difference. NIW petition is a complicated legal process, our attorneys’ work include, but is not limited to, (1) counseling client at every point of the process; (2) assisting client collecting useful information and supporting documents; (3) drafting, reviewing and editing recommendation letters, (4) organizing the documents provided by client; (5) preparing the immigration forms; (6) drafting the petition letter; (7) preparing and filing the petition package; (8) tracing the progress of USCIS adjudication; (9) answering RFE (request for evidence) if one was issued; (10) advising client of compliance with the immigration issues and options while his/her NIW case is pending; and (11) contacting USCIS if necessary.
My case received a letter requesting for addition evidence (RFE), what should I do?
While you are waiting for approval of your case, receipt of RFE will certainly make you disappointed. But never ever panic! While adjudicators raise legitimate questions in many RFE’s, a great number of RFE’s are frivolous, especially those “Broad Brush” RFE’s criticized by Mr. William R.Yates, the Associate Director of USCIS Operations. For some reasons, however, USCIS continues to issue unjustified RFE’s on cases that is approvable based on initial evidence. The good news is that our record shows a majority of these cases are approved after the RFE was appropriately answered.
USCIS denied my NIW petition, can I file it again?
NIW cases can be denied for a number of reasons, legitimate or illegitimate. If a case is erroneously denied, a motion to reopen or reconsider (MTR) may be filed to fix the problem. If a case was denied based on a legitimate reason, e.g. lack of evidence to support the NIW claim, re-filing of the same case will unlikely give you the favorable result you are expecting unless you have new evidence to support the case. Although a previous denial alone may not have a negative impact on a re-filed case, we do not encourage you to re-file unless the case has a reasonable chance of success based on the new evidence you have collected.
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