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National Interest Waiver

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National Interest Waiver

Those seeking a National Interest Waiver (NIW) are requesting that the job offer and labor certification be waived in the interest of the United States. NIW applicants may self-petition. In other words, applicants do not need an employer to sponsor them. 

The fields that may qualify for a NIW are not defined in the law. When adjudicating an NIW petition, USCIS will consider the three factors listed below.

  • The proposed endeavor has both substantial merit and national importance.
  • The applicant 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 labor certification. 

Is the NIW a green card?

It is an immigrant petition which may lead to the issuance of a green card. If the I-140 petition is approved, you have met the eligibility requirements. However, you must also file an Adjustment of Status Application using Form I-485 or complete the Immigrant Visa Processing abroad to obtain the green card. 

After my I-140 petition is approved, will I have legal status and work authorization?

No. An approved NIW I-140 petition only qualifies you to apply for an immigrant visa in order to come to the United States and be admitted as a permanent resident. It does not grant any legal status or work authorization on its own.

How difficult is it to obtain a NIW approval?

If an individual is qualified, the chance of success depends largely on the way the case is presented to USCIS. A persuasive argument should be submitted along with the relevant documentation. Ultimately, every USCIS officer has the discretion to approve or deny a case.

Can an attorney guarantee approval of my case?

No. Attorneys cannot guarantee case approvals. Unfortunately, petitions can be denied by USCIS for a variety of reasons which may not be the fault of the client or the attorney.  If a case is improperly denied, the applicant may be eligible to file an appeal or motion.  

How do I demonstrate that I am eligible for a NIW?

First, it must be demonstrated that the applicant meets the EB-2 category requirement of having an advanced degree, which may be either:

  • By possessing an advanced degree beyond a baccalaureate degree (including a U.S or foreign Ph.D., master’s degree, or MD); or 
  • By demonstrating that the applicant has the equivalent of an advanced degree (a baccalaureate degree plus five years of progressive work experience in the field of expertise).

If the applicant does not meet either of the requirements noted above, s/he may be able to meet the NIW requirements by showing exceptional ability in the field of endeavor. In that case, at least three criteria must be met from the list below:

  • Official academic record showing that the applicant has a degree, diploma, certificate, or similar award from a college, school, or university relating to your area of expertise;
  • Letters documenting at least 10 years of full-time experience in the area of expertise;
  • A license to practice in the profession or a certification for the profession;
  • Evidence that the applicant has commanded a high salary or other remuneration for services in accordance with exceptional ability;
  • Membership in professional associations related to the field of expertise;
  • Recognition for achievements in the field by peers, government entities, or professional or business organizations and significant contributions to the industry;
  • Other comparable evidence.

Second, the applicant must pass the three-factor test outlined above.  

What is exceptional ability?

The law does not provide a definition for exceptional ability. Instead, it indicates that the applicant must have a degree of expertise above that which is ordinarily encountered in the field.

How do I show that it would be beneficial to the United States to waive the job offer and labor certification requirements?

USCIS may evaluate whether the projected benefits of a foreign national to national interest outweighs the necessity of a labor market test seeking similarly qualified U.S. workers. Applicants may summarize the information as a whole and craft a persuasive argument for why this area has been met.

Is a job offer required for a NIW?

No.

Can I apply for the NIW if I do not live in the United States?

Yes. Further, chances of approval should not be lower simply because you are not in the United States.

Can my dependents benefit from my I-140 approval?

If the NIW petition is approved, the legal spouse and unmarried children under 21 may be eligible to apply for admission.

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