National Interest Waivers - Employment Based Green Cards Second Preference (EB-2) Category
What is a National interest Waiver (NIW)?
A National Interest Waiver (NIW) allows applicants in the sciences, arts, professions, or business with an advanced degree or exceptional ability in their field to apply for permanent residence (green card) without requiring an employer to sponsor the individual. In addition, this category does not require a US labor market test to see if there are qualified, willing and able US workers to fill the proposed position. The labor market test is called “labor certification” or “PERM.” The general rule to immigrate through employment is that PERM must first be conducted because the purpose of PERM is to protect American workers (US citizens, green card holders asylees and refugees). The NIW is an exception to that rule. Applying for permanent residence without a labor market test can shave off 1-3 years of processing time. The only way to avoid the PERM and sponsorship requirements is to show the applicant’s work in his or her field of endeavor benefits the U.S. enough that it makes sense to skip the usual labor certification. Some cases may benefit from having an employer sponsor/petition for the applicant/beneficiary if the employer has an excellent reputation in the field.
NIWs fall into the Employment Based (EB) 2nd preference category (EB-2). There are several EB-2 options:
employer sponsorship of someone who has an advanced degree or US equivalent in a subject related to the job where PERM IS required; or
an employer sponsors an applicant or the applicant self sponsors if he/she is a person of “exceptional ability” where PERM is required; or
an employer sponsors an applicant whose occupation falls on a US Department of Labor list of occupations that do not require PERM, called “Schedule A group II.” In addition, certain nurses and physical therapists in Group I also do not need PERM.
an employer sponsors an applicant or the applicant self-sponsors if the applicant holds at least a masters degree or equivalent or is a person of exceptional ability AND whose work will benefit the USA as described below where PERM is waived in the national interest.
For NIWs, USCIS uses a three-prong test from a case called Matter of Dhanasar to evaluate NIW eligibility:
The proposed field of endeavor in which the applicant will work must have substantial merit and national importance, AND
The applicant must be well positioned to advance the endeavor, AND
On balance, it must benefit the U.S. to waive the job offer and labor certification (PERM) requirements.
NIW visa petitions can now be filed for premium processing. However, this category is subject to many Requests for Evidence (RFE) that can delay processing. USCIS scrutinizes these applications, especially under the current administration. But, a well prepared application, even if having to respond to a RFE, if approved, can provide a great benefit to the processing times for green cards in this category. Ability to file for Adjustment of Status or an Immigrant Visa, the final stage of the green card process, however, will depend upon the EB-2 quota and the applicant’s country of birth. See the Visa Bulletin and our FAQ on how the quota works.
More on the NIW Three-Prong Dhanasar Test:
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Substantial Merit & National Importance
The proposed work must affect the U.S. nationally: Link your work to federal/state or regional initiatives, nationwide problems, and/or measurable specific economic impacts or impact on specific industrial sectors.
Tips: A lot of thought should go into defining the field of endeavor. It may not be just the occupation itself. Typically, it is not hard to show the applicant’s field of endeavor is of substantial merit. Get detailed support letters from experts in your field. Include examples of accomplishments, metrics, and comparative significance. Show how your work has/will impact the field regionally or nationally, or will influence policy, markets, or public health as examples. How does the work fit into regional or national priorities?
Top reasons for denials: Failure to show the work in the field of endeavor is/will be national in scope. Failure to show the work has been shared with others. Especially for private sector work, has the work been shared outside the company?
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Well Positioned to Advance the Field of Endeavor
Documenting past accomplishments to show likely success/benefits in the future: Show evidence of past accomplishments, publications or other public sharing or presentations, and a plan showing future national impact.
Tips: Show a clear track record of your education, experience, recognition, and results. Show future plans (including proposed job description) with real steps and milestones, whether as an employee or self-employed, or starting a business. It’s not enough to just show you are good at something. Link accomplishments to how they have benefited and will benefit the USA.
Don’t forget NIW’s require a masters degree or equivalent, or exceptional ability, with work experience and accomplishments in a defined field of endeavor that will continue after the green card is granted.
Top reasons for denials: No proof of relevant degrees, publications, awards, or project leadership. Business ventures that lack track records or funding; lack of letters from unbiased peers, experts.
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On Balance, It Benefits the USA to Waive the Job Offer & PERM
Waiving PERM and a job offer would benefit the U.S. more than requiring a US labor market test for qualified, willing and able US workers.
Tips: A mere labor shortage is not enough. Indeed, that is the reason for testing the US labor market for US workers. Show why it is in the national interest to waive PERM. Some options depending upon the facts: how delays from labor certification processing times harm the national interest; urgency of your work; uniqueness of your work/not available in the US labor force; or the scale of your future plans/endeavor (e.g., will be hiring X# of employees in a wide geographic scope of the country). Link to being well positioned in the field, best suited, qualified, consequences to the field if not approved, or that PERM does not permit self-employment.
Top reasons for denials: Petitioners who could qualify for jobs with PERM but didn’t show why waiving PERM was more beneficial to the US; endeavors that benefit a narrow audience or personal career; or just asserting a labor market shortage.
Need help planning your NIW case or interpreting a RFE or denial?
We can review your credentials for eligibility and options.
How we work on NIW cases.
First, we’ll ask you to complete a detailed questionnaire and give you a checklist of documents to send to us. We ask that you set up a paid consultation to discuss your case. We usually spend 1-2 hours initially. We also look at other options if we feel this would not be a strong NIW case. We also have to consider the quota, your nonimmigrant status and need for extensions, as well as the statuses of any family members and ages of your kids. We will review and analyze your CV and portfolio of accomplishments to confirm there is a good fit for this category. We will also discuss your current and upcoming work in case there is something significant on the horizon that would benefit your case more by waiting to file later on. Once we have more info about your case, we’ll give you a quote for estimated fees and costs.
When we have a contract in place, together, we’ll make a list of potential letter writers to cover past experience, contributions and expectations for your future work and benefit to the USA. Then, we will provide you with some templates to give your letter writers. We are likely do some more research about your field/industry and may ask you to provide some more information. Once we have the draft letters, we will review those with the letter writers to finalize.
After we have all final documents, we will prepare a brief and exhibit list for submission to USCIS in which we will argue why you qualify for this application category.
Here are a few considerations:
Many of the denied cases were filed by Do-it-Yourselfers, although using a lawyer is also no guarantee of success.
Using AI has its limits: AI often makes mistakes, misstates information, or provides incorrect information or source material. Everything needs to be checked. AI does NOT account for the human nature of USCIS adjudicators or internal nonpublic policies or procedures. Every adjudicator is different. They all have different levels of education. They do not understand everyone else’s industries or occupations, and there may be internal political mandates going on at USCIS.
You can bet that USCIS will use AI or other programs to check for copy-cat filings. Your case should be unique to you. That means all evidence submitted must be true and authentic.
Expect requests for evidence (RFEs) and other extreme vetting by this administration. RFEs are very common as are Notices of Intent to Deny (after responding to an RFE). However, each time your response is another opportunity to explain your case. But, you must be qualified at the time of original submission. Unfortunately, these can add to the cost of your case. We strive to head off RFEs by being very meticulous about the evidence we request and the arguments we make.
These cases are time consuming, and therefore, expensive. Expect to participate in the preparation when working with us.