National Interest Waiver (NIW)


Overview

A National Interest Waiver (NIW) petition falls into the employment-based immigration second preference (EB2) category. Normally, a permanent job offer and an approved labor certification are pre-requisites to file an employment-based second preference immigration petition. However, a National Interest Waiver (NIW) petition requests that the otherwise required U.S. job offer requirement, and thus the labor certification requirement, be waived for the sake of the “national interest of the United States.” What this means is that an applicant may apply for a NIW immigration petition without a labor certification or a job offer from a US employer.

First, in order to be eligible to file a NIW petition, a beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts or business. The beneficiary must also persuasively demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest. Each NIW case is adjudicated on its individual merits, but the burden of proof is always on the applicant or beneficiary to establish that exemption from the labor certification will be in the national interest of the U.S.

For NIW, even if the beneficiary has no employer, he/she may file a NIW petition on behalf of himself/herself. A U.S. employer may also file a NIW petition on behalf of the beneficiary. Furthermore, the beneficiary can file other immigration petitions under other appropriate categories (such as an EB-1(a) Extraordinary Ability petition) while a National Interest Waiver petition is pending.

Recent Changes and Regulations

After the current economic slowdown, and the tightening of U.S. immigration policy, obtaining approval on NIW petitions is more difficult than ever before. Moreover, the USCIS Texas Service Center and the USCIS Nebraska Service Center, which between them decide all NIW petitions, may in practice have different approaches and standards. Please visit recent developments regarding NIW petitions for more information. Because of the complexity and high standards involved with a NIW petition, we strongly recommend that you to seek assistance from experienced NIW immigration attorneys - the key to your success, especially under the current strict immigration conditions.

Currently, 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. This means that applicants are eligible to adjust their status and obtain green cards faster than through labor certification or all family based categories other than immediate relatives. Please click here for the latest Visa Bulletin cut-off dates for immigrant visa applications; immigrant visa number availability is updated monthly by the State Department and is subject to change at any time. India and mainland-China born nationals may also obtain NIW I-140 approvals, and will be able to adjust their status when visa numbers become available in the EB-2 category.

NIW applications have clear advantages over other regular employment based immigrant petitions. Since there is no labor certification or permanent job offer requirement, a NIW is an attractive choice for scholars, researchers, post doctoral research fellows, Ph.D students, and other advanced degree professionals. Despite factors that have made it difficult to receive a National Interest Waiver, our approval rate remains very high as a result of our experienced immigration attorneys.

For more detailed information on National Interest Waiver, including minimum requirements and USCIS policies, please click on the relevant links on this page: