EB2 Visa Category - (NIW) National Interest Waivers

EB2 Visa Category - (NIW) National Interest Waivers

What is a National Interest Waiver

The National Interest Waiver allows certain Employment-Based applicants to forego much of the hurdles in other Employment-based applications, mainly the labor certification. Like the labor certification, the National Interest Waiver was established in the interests of the United States. This waiver, however, allows advanced degree professionals or those with exceptional abilities to contribute to the development of the nation without the.

To Whom Does the National Interest Waiver Apply To?

The Department of Homeland Security established the National Interest Waiver program to facilitate a mutually beneficial situation that would accommodate the interests of the United States and the applicant. Therefore, applicants with exceptional ability and talents who will be working in/towards fields of intrinsic merit should consider applying for a National Interest Waiver if they fall under the EB-2 category. The first step in determining eligibility is to qualify as an alien of exceptional ability or a professional with an advanced degree.

What Constitutes an Advanced Degree?

An advanced degree is an educational degree beyond the bachelor's degree, or foreign equivalent. This degree is generally a graduate degree in the form of a Masters or a Doctorate. This can be a medical degree or law degree, as long as the admission to the medical or law school requires the equivalent of a bachelor's degree.

Am I Eligible for a National Interest Waiver?

The United States Citizenship and Immigration Services have not defined “national interest” for purposes of the National Interest Waiver. Therefore, USCIS determines if the application meets national interest using a three-pronged test.

1. The applicant should be seeking employment in an area of substantial intrinsic merit;
2. The benefit of the employment/work should be national in scope; and
3. Waiving the labor certification requirement would benefit the national interest.

This three-pronged test assumes that the applicant has already qualified for an EB-2 Category as having an exceptional ability or an advanced degree. This also means that merely having an exceptional ability alone will not qualify an applicant for a National Interest Waiver. The burden of proof is to establish that the exceptional ability or work to be performed will outweigh the need to undergo the labor certification process.

Before applying the three-pronged test, there are some factors which should be taken into consideration. These factors help determine eligibility for a National Interest Waiver and were suggested by the Administrative Appeals Unit:

1. Improving the condition of healthcare in some way, shape or form;
2. Improving education/educational system for children or training for underqualified workers;
3. Improving the economy;
4. Improving wages and working conditions for workers;
5. Providing access to more affordable housing;
6. Improving the natural environment or applying more effective/efficient use of natural resources; and
7. Interested government agency request.

How to Apply for National Interest Waiver?

When applying for a National Interest Waiver, USCIS allows either the applicant or the employer to sign the Petition. This petition should be accompanied with a statement which carefully outlines the national interest claim. The decision of the application is weighed heavily on national interest so this statement should be meticulously prepared.

In order to comply with the first requirement of the National Interest Waiver, evidence submitted along with the application should support that the work to be performed is an area of substantial intrinsic merit. To accomplish this, the applicant should submit supporting evidence. This evidence can consist of a statement from the Petitioner (applicant/employer) describing the nature of the work to be performed and its significance. To support the significance, the applicant should also provide publications and articles which support the importance of the work to be performed. Another form of evidence is to provide to letters or testimonial letters from experts/professionals in the field that attest to the importance of the work.

For the second requirement, in order to prove that the work is national in scope, the applicant should include additional evidence supporting this claim. Supporting evidence of this nature can include publications or reports, copies of contracts or agreements or letters from employers, former or current which detail the work and its significance. Statements from experts in the field are also acceptable and if attainable, strongly encouraged. These statements from experts should include some background on their credentials, such as a resume' or a C.V.

The third requirement should focus on how the national interests considered under the labor certification are outweighed by the benefits enjoyed through the work the applicant will be/is performing. This can be done by showing how the applicant may contribute to the creation of jobs or facilitate affordable housing. Evidence to support the substantial benefits of foregoing the labor certification can include publications or awards which recognize the achievements or work of the applicant. Proof of any grants received for the work that is to be done or currently being done. The applicant may also submit agreements with other companies which show that his/her service or good is being used. Any patents or licenses should also be documented as they can provide insight as to the importance of the work and why or how it outweighs the national interests concerning the labor certification.

After the application has been filed.

If the applicant had filed for a National Interest Waiver based on his/her work with an employer, and this employer is unable to hire the applicant or chooses not to, the waiver becomes invalid. However, the applicant can maintain the validity of the waiver, should he/she be able to gain employment with another that allows him/her to contribute as he/she would have with the previous employer.

If a National Interest Waiver is denied

Because National Interest Waivers are discretionary, they are considered final and thus not subject to Judicial Review.