National Interest Waiver (NIW)

Foreign professionals who hold at least a Master’s Degree or can prove exceptional ability in certain fields are eligible for legal permanent residence (green card) as advanced degree professionals without the labor certification requirement. If the foreigner’s work benefits the national interest (improves the United States economy, health care system, environment, education, housing, culture, technology, etc.) and the foreigner can demonstrate evidence of future contributions to his or her field, he or she may qualify for a “National Interest Waiver” of the Labor Certification process. The foreign national may self-petition or be sponsored by an employer.

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.

You 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.”

For a successful National Interest Waiver case, an alien must satisfy the following minimum requirements:

  • 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 documenting 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;
  • Membership in a professional association(s);
  • 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 is also acceptable.

Precedent decision in the National Interest Waiver cases:

Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) now controls the decision making process in the National Interest Waiver cases. Previous precedent case Matter of New York State Department of Transportation [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) has been overruled and no longer applies.

New guidance opens the door to lawful permanent residence for individuals involved in a wider range of endeavors who would have failed to qualify under the old standard.

Matter of Dhanasar provides that after eligibility for EB-2 classification has been established, USCIS may grant a National Interest Waiver if the petitioner demonstrates, by a preponderance of the evidence, that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance.
  • The foreign national is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Notable change is that there is no longer a requirement of comparing the foreign national to other U.S. workers in the same field. Instead, the criteria focuses on the applicant’s own background. Under more flexible standard, it may be possible for a self-petitioning entrepreneur to demonstrate that the U.S. would benefit from the foreign national’s contributions.

Contact our law firm for a detailed consultation if you consider a National Interest Waiver as your immigration option.

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