National Interest Waiver (NIW)

1. Overview

A National Interest Waiver (NIW) petition falls into the employment-based immigration second preference (EB2) category. Normally, a permanent job offer and approved labor certification are pre-requisites to file an employment-based second preference immigration petition. However, a National Interest Waiver (NIW) petition requests that the otherwise required U.S. job offer requirement, and thus the labor certification requirement, be waived for the sake of the “national interest of the United States.”

In order to file an NIW petition, a candidate with an “advanced degree” or “exceptional ability” must be able to persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest.

Since the requirement of a job offer is waived, an individual, even if he/she has no employer, may file an NIW petition on behalf of himself/herself. A U.S. employer may file an NIW immigration application on behalf of an alien as well. Furthermore, an alien applicant can also try to file other immigration petitions under other appropriate categories while a National Interest Waiver petition is pending, such as an EB-1(a) Extraordinary Ability petition.

2. Minimum Requirements: “Advanced Degree” or “Exceptional Abilities”

At a minimum to qualify for a National Interest Waiver (NIW) the applicant must meet standard EB-2 criteria: an advanced degree. A U.S. academic or professional degree or a foreign equivalent degree above that of a Bachelor’s degree will be sufficient. In the absence of an advanced degree, a U.S. Bachelor’s degree or foreign equivalent plus at least five years of progressive experience in the specialty is considered the equivalent of a Master’s degree. In the alternative, the applicant can claim exceptional ability, i.e. a degree of expertise significantly above that ordinarily encountered in the alien’s field of expertise.

However, as the Administrative Appeals Office (“AAO,” the appellate body reviewing USCIS decisions) states, whether an alien seeks classification as an alien of exceptional ability or as a member of the professions holding an advanced degree, the alien cannot qualify for a waiver just by demonstrating a degree of expertise significantly above that ordinarily encountered in his or her field of expertise. Instead, specific criteria have to be met.

3. Qualifying for a National Interest Waiver

The occupations that qualify for a National Interest Waiver are not defined by statute. However, each of the three prongs mentioned above must be met to qualify for a NIW.

Work in an area of “substantial intrinsic merit” means work in a field that is valuable to the national interest of the US. Research in any scientific field, for example, can be said to have substantial intrinsic merit to the national interest of the US. Likewise, a sociologist studying demographic trends relating to the 2010 US Census can argue that she seeks work in an area of substantial intrinsic merit; or an educational policy expert can show that his field has substantial intrinsic merit due to its capacity to improve society through education. These are just a few examples; this criterion is not hard to meet.

The second prong, that the applicant’s work, if successful, benefits the US nationally in scope, means that an applicant’s work cannot have merely a limited regional impact. An applicant who has published their research can always show that their work has a national scope since academic publications are disseminated nationally and internationally. In the absence of publications, an applicant can show that the impact of their work is national in scope; for example, a petroleum engineer can argue that her work impacts the entire U.S. in terms of energy supply and refinery safety.

The third prong is the toughest to meet, namely that the National Interest would be adversely affected if a Labor Certification were required for the alien. USCIS interprets this to mean that the benefit of an applicant’s work to the U.S. is so great as to outweigh the nation’s inherent interest in protecting U.S. workers by requiring aliens to undergo the Labor Certification process.