National Interest Waiver
The process for obtaining permanent residency through employment requires a job offer from a U.S. employer and an approved labor certification application from the Department of Labor. The National Interest Waiver (NIW) provides an exemption to this requirement for foreign nationals who will be engaged in certain activities that benefit the national interest. This exemption applies only to individuals seeking permanent residency under the EB-2 immigrant classification. By exempting the job offer and labor certification requirements, the NIW creates the opportunity for foreign entrepreneurs with advanced degrees or exceptional ability to self-petition for their permanent resident status.
Since the NIW is only applicable to the EB-2 classification, the foreign national must have either: (1) an advanced degree; or (2) exceptional ability in science, arts, or business.
The foreign national can satisfy the advanced degree requirement by having a:
- U.S. master’s degree or higher (or foreign degree equivalent); or
- U.S. bachelor’s degree (or foreign degree equivalent) plus five years of progressive, post-bachelor’s work experience.
Foreign Degrees: Degrees received from a foreign academic institution must be evaluated to determine its U.S. equivalent. USCIS relies on the Electronic Database for Global Education (EDGE) created by the American Association of Collegiate Registrars and Admissions Officers (AACRO) as a source for evaluating foreign academic credentials: https://www.aacrao.org/edge.
Progressive Experience: To qualify with a bachelor’s degree and work experience, the five years of work experience must show advancing levels of responsibility and knowledge in the specialty.
In the absence of an advanced degree, a foreign national can also qualify based on an exceptional ability in the sciences, arts, or business. (Athletes can qualify as having exceptional ability in the arts.) Exceptional ability in this context refers to a degree of expertise significantly above that ordinarily encountered.
To establish exceptional ability, at least three of the following types of evidence must be provided:
- An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- Letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership in professional associations;
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations; and/or
- If the above standards do not readily apply, comparable evidence may be submitted to establish eligibility.
National Interest Waiver (NIW)
Petitions seeking EB-2 classification generally requires an approved labor certification application filed with the Department of Labor. The NIW eliminates this requirement for foreign nationals who aim to engage in activities that are deemed to be in the national interest. It also eliminates the job offer requirement thereby allowing individual applicants to self-petition for permanent resident status.
On December 27, 2016, USCIS issued the precedent AAO decision, Matter of Dhanasar (Dhanasar) which expanded the eligibility of NIW petitions. Most notably, it made NIW petitions more accessible to entrepreneurs and the self-employed. However, the approval of NIW petitions remain reliant on subjective determinations by individual USCIS examiners. Therefore, a compelling narrative and detailed documentation are essential.
The current NIW standard based on Dhanasar requires satisfying three criteria:
- The proposed endeavor has both substantial merit and national importance;
- The beneficiary is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and of a labor certification.
Substantial Merit & National Importance
The first component of this criterion “substantial merit” focuses on the specific endeavor to be undertaken by the foreign national. Notably, the proposed endeavor has the potential for making a significant contribution to furthering a national interest. The proposed endeavor can be in a wide range of areas, including business, entrepreneurialism, science, technology, culture, health, or education. A potential to create a significant economic impact would be helpful but is not required.
The second component of this criterion “national importance” expands the analysis of the proposed endeavor to include national or global implications within a particular field. For example, an endeavor to develop of a new medical or manufacturing technology can have impact on a global or national level. Work that has a local or regional impact can also be considered to be of national importance. For example, the potential to create significant employment in an economically depressed region may qualify as having national importance.
Well Positioned to Advance the Proposed Endeavor
This criterion shifts the analysis to the foreign national’s capacity to perform the activities required by the proposed endeavor. The foreign national is not required to show the undertaking will likely be a success. Rather, the focus is on whether the foreign national is in a position to competently pursue its execution. Relevant factors considered for this criterion include, but are not limited to, the foreign national’s background, education, skills, knowledge, and record of success in related or similar efforts; the model or plan for future activities; any progress made towards achieving the proposed endeavor; and the interest of potential users, investors, or other relevant organizations or individuals.
National Interest in Waiving the Requirements
This criterion requires the showing that it would be beneficial to the United States to waive the requirements of a job offer and of a labor certification. The factors considered for this criterion include whether it is difficult for the foreign national to secure a job offer or for a U.S. employer to obtain a labor certification. Further considered are whether the beneficiary’s work would still benefit the United States even if there is a U.S. worker also qualified for the position and whether there is a level of urgency to the work that would merit a waiver of the labor market test.
The NIW petition does not require obtaining an approved labor certification application. The immigrant petition with documentary evidence can be submitted by the individual applicant directly to the USCIS for adjudication. Due to the level of subjectivity involved in the adjudication process, it is advisable to devote ample effort to plan and collect supporting documentation and to compose a persuasive narrative. USCIS does not offer premium processing for NIW petitions.
Those already in the United States under lawful status may apply for an adjustment of status upon the approval of the petition and the priority date becoming current. If the alien is overseas, he or she must obtain an immigrant visa at a U.S. embassy or consulate.