EB-2 NIW | National Interest Waiver

Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

If the EB-2 worker’s presence can be shown to hold benefit for the U.S. in the future, it may be possible to apply to this category without first getting a job offer or labor certification, through what is called a national interest waiver. (Labor certification is a long and complicated process)

To demonstrably “benefit” the U.S., applicants will have to show that their work there will favorably impact the U.S.’ economic, employment, educational, housing, environmental, or cultural situation some other important aspect of U.S. life.

The impact must be national in scope: A public health researcher at a federal agency or a university might pass, for example, while the same person coming to provide direct services at a community clinic would probably not.

Applicants will also have to show that the field of work has “substantial intrinsic merit”—in other words, worthy in and of itself. Also, applicants will need to demonstrate that the work will prospectively benefit the U.S. national interest to a substantially higher degree than that of a similarly qualified, available U.S. worker would. (Unfortunately, USCIS often reinterprets this requirement to mean showing that being forced to go through the labor certification process would hurt the U.S. national interest. A local labor shortage is not considered to be an adverse impact.)

In addition to providing evidence of an advanced degree or exceptional ability, you must also meet the 3 National Interest Waiver criteria below** to demonstrate that it is in the national interest that USCIS waives the requirement of a job offer, and thus the labor certification.

Criteria for Advanced Degree or Exceptional Ability

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 ten 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.

Particular Criteria for National Interest Waiver

1. The proposed endeavor has both substantial merit and national importance.

2. You are well-positioned to advance the proposed endeavor.

3. It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.

Family of EB-2 Visa Holders

If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible for admission to the United States in E-21 and E-22 immigrant status, respectively.

Because the combination of the above criteria is difficult to satisfy, obtaining a national interest waiver is harder than applicants usually expect, and a lawyer’s help is definitely in order.