National Interest Waiver

    National Interest Waivers (NIW) fall are part of the employment-based immigration second preference (EB2) category.

    In most cases, a permanent job offer and an approved labor certification are required before you can file an employment-based second preference petition. But with a National Interest Waiver (NIW) the petitioner requests that these two requirements be waived for because it is in the “national  interest of the United States.”

    To file an NIW petition, a candidate with an “advanced degree” or “exceptional ability” must be able to persuasively demonstrate the following:

    • The candidate seeks employment in an area of substantial intrinsic merit to the U.S.;
    • The benefit from the candidate’s proposed activity will be national, rather than local, in scope; and
    • The requirement that a Labor Certification be obtained will adversely affect America’s national interest.

    What makes the NIW so attractive is that the candidate may file an NIW petition before he or she has an employer.

    Of course, a U.S. employer may file an NIW immigration application on behalf of an already employed alien. Also, an NIW candidate may simultaneously file other immigration petitions (such as an EB-1(a) Extraordinary Ability petition) while a National Interest Waiver petition is pending

    Because of the sluggish economy and the tightening of U.S. immigration policy, getting an NIW petition approved is very difficult.

    And, amazingly, the USCIS Texas Service Center and the USCIS Nebraska Service Center, which decide all NIW petitions, use different approaches and standards.

    Because of the complexity involved and difficult in obtaining an approved NIW petition candidates should consult with an experienced NIW immigration attorney before filing a petition.

    Right now all employment-based second preference applicants may simultaneously file an I-485 with their I-140 petitions with the exception of individuals born in mainland-China and India. In other words, these means these individuals are able to adjust their status and obtain green cards much faster than those who have to navigate the normal labor certification process for all family based categories other than immediate relatives.

    India and mainland-China born applicants may also obtain NIW I-140 approvals but will only be able to adjust their status when visa numbers become available in the EB-2 category.

    An NIW application has great advantages over the typtical employment based immigrant petition because there is no labor certification  or permanent job offer requirement.

    An NIW should be considered by scholars, researchers, post doctoral research fellows, Ph.D.  students, and other advanced degree professionals.

    Even though it is difficult to obtain a National Interest Waiver, with proper pre-application planning and careful assembly of the petition package a candidate’s chances of approval are greatly increased.