A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Tuesday, March 8, 2022

National Interest Waiver Green Card Explained

The Immigration and Nationality Act (INA) of 1990 created the Employment-Based Second Preference Immigrant Visa Category (EB-2).   Further, it provided that a person holding advanced degrees or a person of exceptional ability may obtain a waiver of the job offer requirement if the person's immigration is considered to be in the “national interest.”  This "national interest waiver" (NIW) provision applies only to the second preference (EB-2) classification.  The EB-2 visa classification is reserved for applicants holding advanced degrees or persons of exceptional ability. 

What is NIW? 

In general, when an applicant applies for a U.S. green card based on employment, a valid job offer by a U.S. employer is required.  Further, the employer must also first test the job market (through the labor certification process) to see if there are qualified American workers who are willing to take the position, before offering the job to the foreign worker.  An EB-2 application filed with a request for a national interest waiver means that the applicant is asking the USCIS to waiver both requirements.  It means that the applicant can apply for a U.S. green card by himself/herself without the sponsorship of an employer and also without the need to obtain a labor certification. 

Requirements of NIW

To establish eligibility for a national interest waiver, the applicant (also the petitioner) must prove that he/she qualifies as either a member of the professions holding an advanced degree or as a person of exceptional ability; and also it is in the national interest for USCIS to waive the job offer and the labor certification requirements.  

For individuals applying as persons of exceptional ability, they must show that their presence in the United States would substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future. 

How to establish national interest? 

Simply being a member of the professions holding an advanced degree or a person of exceptional ability does not qualify the petitioner for a national interest waiver. The petitioner seeking a waiver of the job offer and labor certification is in the national interest.  

The term "national interest" has not been defined in the Immigration Act or in the regulations.  In 2016, the Administrative Appeals Office of USCIS handed down a landmark decision - Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) - in which the agency's appeals unit pronounced a new legal framework for adjudicating NIW petitions.  The AAO held that USCIS  may grant a national interest waiver if the petitioner demonstrates: 

(1) that the foreign national’s proposed endeavor has both substantial merit and national importance; 

(2) that he or she is well positioned to advance the proposed endeavor; and 

(3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. 

The petitioner has the legal burden to provide evidence to prove that he/she is eligible for a NIW.  

Advantages for an NIW petition / STEM Applicants

There are many advantages of filing an NIW petition. As mentioned, a petitioner can self-petition a green card for himself or herself without the sponsorship of an employer. This can be very helpful to individuals who do not want to be tied up with a job.  Exemption of the labor certification means faster application process.  Further, a NIW petition can be based in a broad range of disciplines such as business, entrepreneurship, science, technology, culture, health, or education.   USCIS also does not limit the national interest to a specific geographic area, if the underlying subject area can be applied nationally. 

Being aware that the U.S. is behind other countries in STEM education and training, the USCIS has placed more emphasis in NIW applications filed by petitioners in the STEM fields.  For example, USCIS will consider a positive factor possession of an advanced STEM degree, particularly a Ph.D.  Further, if the petitioner is engaged in a critical and emerging technology or other STEM area important to U.S. competitiveness in the world market, it can also serve as positive evidence. 

Although there are many advantages of filing an NIW petition, the burden of proof is quite high and substantial evidence, such as research papers, certificates, business plans, customer contracts, and other technical and business documents are required. Further, the petitioner must clearly articulate not only that his/her proposed endeavor has substantial and national merits, but also why, on balance, it would be beneficial to the US to waive the job offer and labor certification requirements.  Careful planning and meticulous documentation are essential to prepare a strong NIW petition.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)

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