National Interest Waiver (NIW)

The EB-2, is a green card visa for foreign nationals which falls under the employment-based immigration: second preference category (EB-2) and consisting of subcategories:

• 1. EB-2, First subcategory: Advanced degree
• 2. EB-2, Second subcategory: Exceptional Ability
• 3. EB-2, Third subcategory: National Interest Waiver

Pursuant to §1153(2)(B)(i) of the United States Code provides for National Interest Waiver which states that if the Attorney General deems fit that the foreign national work to be in the national interest of the United States, waive the below requirements that are required for a foreign national to qualify under the employment-based immigration: second preference category, Eb-2.

• 1. Foreign nationals strictly in the work field of sciences, arts, professions or business
• 2. Sponsorship from employer to petition for the foreign nationals

In layman’s terms, when the foreign national does not possess any requirements to qualify under employment-based immigration: first preference category (EB-1) he or she can petition under the employment-based immigration: second preference category (EB-2) if he or she possesses the below criteria for national economy, cultural or educational interests, or welfare of the United States must be prospectively benefited by the foreign nationals’ exceptional ability in the work field of science, arts or business.

• 1. An advanced degree or its foreign equivalent plus a minimum of 5 years of progressive work experience in the field.
• 2. Exceptional ability in sciences, arts or business provided that three of the below requirements are fulfilled;
  • i. Degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
  • ii. Letters from current or former employers documenting at least 10 years of full-time experience in the area of exceptional ability
  • iii. License to practice the profession or certification for profession
  • iv. High salary proportionate to the services of exceptional ability
  • v. Membership in professional organizations
  • vi. Recognition for achievements in the area of exceptional ability in the profession’s industry by peers, professional or business organizations

Additionally, pursuant to §1153(2)(A) of the United States Code (USC), foreign nationals must be sponsored by their employers. Therefore, the PERM Labor Certificate and the employer must petition on behalf of the foreign nationals for the grant of an advanced degree EB-2 or an exceptional ability EB-2.

NIW comes into play if the foreign national is of opinion that Unites States economy, cultural or educational interests or welfare, would prospectively benefitted by his or her services in work field. But firstly, the foreign national shall possess the above criteria similar for those to qualify for Eb-2 that is; has an advanced degree or exceptional ability in their field of expertise as stated in Matter of Dhanasar. Also, in Matter of Dhanasar provide that the foreign national should be well-position to advance the proposed endeavor. There’s no specific jobs that qualify for NIWs but it’s preferable for the area of expertise is in the sciences, arts or business. Additionally, the United States Citizenship and Immigration Services (USCIS)

The burden of proof lies on the petitioners and they must prove their cases on a strong balance of probabilities in their favor. Once proven, the USCIS officer, he or she can waive the requirements that the petitioner should be of services like sciences, arts, professions or business or the sponsorship of an employer to petition on behalf of foreign nationals are not required. Hence, NIW can be self-petitioned since no labor certification (PERM) is not required.

The EB-2 NIW now has an option for premium processing whereby the green card processing time is 45 calendar days only. Upon receipt of NIW, the petitioner will gains permanent residency in United States and can pursue his or her field of work. Also, the petitioner’s spouse and unmarried children under the age of 21 are also eligible for the green card visa application.

Applying for an EB-2 NIW is complex and time consuming. Also, it takes an EB-2 NIW experienced immigration lawyer to prepare the petition since the approval of the NIW relies on the evidence and how the immigration lawyer presents the petition and convince the USCIS Officers that by waiving the job offer or the labour certificate, the petitioner’s endeavor will surely and prospectively benefit the national economy, cultural or educational interests or welfare of the United States.

7 Reason you shouldn’t file NIW yourself

1. Legal Expertise: An immigration attorney specializes in the intricate nuances of NIW requirements, ensuring your application adheres to current laws, regulations, and USCIS guidelines.

2. Strategic Approach: Crafting a strong NIW case requires strategic planning to highlight your unique contributions. An attorney can design a persuasive case that aligns with the criteria for national interest.

3. Evidence Compilation: An attorney knows what specific evidence is needed to support your NIW claim, ensuring your accomplishments are presented effectively and convincingly.

4. Complex Documentation: NIW petitions involve detailed documentation of your work and impact. An attorney can organize and present the evidence in a way that maximizes its impact.

5. Avoiding Mistakes: Even minor errors on your application can lead to delays, rejections, or misrepresentation issues. An attorney’s meticulous approach minimizes the risk of mistakes.

6. Responding to Challenges: If your NIW petition receives a Request for Evidence (RFE) or faces challenges, an attorney can respond with legal arguments and additional evidence, strengthening your case.

7. Overall Success: Engaging an attorney significantly improves the likelihood of a successful NIW application, helping you achieve your goal of obtaining a green card based on national interest.