National Interest Waiver (NIW): Eligibility Criteria and Application Process

The National Interest Waiver (NIW) is a subcategory of the EB-2 visa, which allows individuals to bypass the labor certification process if their work is deemed to be in the national interest of the United States. 

What is the National Interest Waiver (NIW)?

The NIW allows certain foreign nationals with exceptional abilities or advanced degrees to obtain a green card without needing a job offer or labor certification if their work benefits the national interest of the United States. It is a part of the EB-2 (Employment-Based, Second Preference) visa category.

Eligibility Criteria for NIW

To qualify for an NIW, applicants must meet the following criteria:

1. Advanced Degree or Exceptional Ability

• Advanced Degree: Hold an advanced degree (master’s degree or higher) or its equivalent in a professional field. Alternatively, a bachelor’s degree plus five years of progressive work experience in the field can be considered equivalent to a master’s degree.

• Exceptional Ability: Demonstrate exceptional ability in the sciences, arts, or business. This can be proven through evidence such as degrees, awards, memberships, and letters of recommendation.

2. National Interest Criteria (Matter of Dhanasar)

Under the Matter of Dhanasar precedent, applicants must meet the following three criteria to demonstrate that their work is in the national interest:

1. Substantial Merit and National Importance: The proposed endeavor must have substantial merit and national importance. This can be demonstrated by showing the potential impact of the work on the U.S. economy, healthcare, environment, education, or other important areas.

2. Well-Positioned to Advance the Endeavor: The applicant must be well-positioned to advance the proposed endeavor. Evidence can include a strong track record of achievements, relevant education and skills, and a plan for future activities.

3. On Balance, Beneficial to the U.S.: It must be demonstrated that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. This means showing that the national interest outweighs the need to test the U.S. labor market.

Application Process for NIW

1. File Form I-140

• Form I-140: The first step in the NIW application process is filing Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS).

• Supporting Documents: Include all required supporting documents, such as evidence of advanced degree or exceptional ability, and documentation that demonstrates how the applicant meets the national interest criteria.

2. Adjustment of Status or Consular Processing

• Adjustment of Status: If the applicant is in the U.S. in a valid nonimmigrant status, they can file Form I-485, Application to Register Permanent Residence or Adjust Status, once the I-140 petition is approved.

• Consular Processing: If the applicant is outside the U.S., they will need to apply for an immigrant visa at a U.S. embassy or consulate in their home country after the I-140 petition is approved.

Tips for a Successful NIW Application

• Comprehensive Documentation: Ensure that all documentation is thorough, accurate, and clearly demonstrates the advanced degree or exceptional ability and how the work benefits the national interest.

• Expert Opinions: Include letters of recommendation from experts in the field who can attest to the applicant’s qualifications and the national importance of their work.

• Organized Presentation: Present evidence in a well-organized and clear manner, making it easy for USCIS officers to review and understand the applicant’s qualifications and the national interest argument.

Keywords

National Interest Waiver, NIW, EB-2 visa, Form I-140, immigrant petition, USCIS, adjustment of status, consular processing, advanced degree, exceptional ability, Matter of Dhanasar, national interest criteria, letters of recommendation.

Conclusion

The NIW provides a valuable opportunity for individuals with advanced degrees or exceptional abilities to obtain U.S. permanent residency if their work benefits the national interest. By understanding the eligibility criteria and following the application process carefully, applicants can maximize their chances of success and achieve their goal of living and working in the United States.

If you have any questions or need legal assistance, please contact Liang Law at (408) 780-8862. We are here to help you through every step of the process.