The National Interest Waiver, commonly known as NIW, is a provision under U.S. immigration law that allows individuals to obtain lawful permanent residency without the need for a job offer or labor certification. This waiver is available under Employment-Based Immigration: Second Preference (EB-2), catering to individuals of exceptional ability in the arts, sciences, and business.
Unlike the EB-1A, the NIW is awarded to those who demonstrate that their expertise or employment would significantly benefit the national interest of the United States. Therefore, successful applicants must show that their extraordinary abilities specifically contribute to the United States. Conversely, this makes the NIW particularly appealing to scientists, researchers, entrepreneurs, artists, and other individuals who may not fit traditional employment sponsorship but whose work holds substantial merit and national importance.
What are the Eligibility Requirements for a National Interest Waiver?
To qualify for a NIW, applicants must provide evidence of an advanced degree or exceptional ability in the sciences, arts, or business. Furthermore, the applicant must meet the three key requirements (listed below) established by USCIS, as outlined in the precedent decision in the Matter of DHANASAR:
The person’s proposed endeavor has both substantial merit and national importance: The applicant’s proposed endeavor must have potential to benefit the U.S. economy, culture, education, or welfare.
The person is well positioned to advance the proposed endeavor: The applicant must demonstrate they possess the necessary education, skills, knowledge, or track record to successfully advance their proposed endeavor.
It would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements: Finally, the applicant must show that waiving the offer of employment requirement and thus the standard PERM labor certification process would benefit the United States, demonstrating urgent and unique contributions. The former can be substantiated with evidence of the detriment to the U.S. national interest if certification were required.
Additionally, applicants can present comparable evidence to meet any of the above requirements if the standard criteria do not apply. This permits flexibility and encourages applicants who may be eligible to apply for a national interest waiver.
What are Examples of Qualifying Professions?
The National Interest Waiver (NIW) is typically available to professionals who can demonstrate that their work is in the national interest of the United States. Qualifying professions include those listed in INA 101(a)(32) and other occupations where a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry. While specific professions can vary, examples of qualifying fields often include:
- STEM (Science, Technology, Engineering, and Mathematics): Professionals in fields such as computer science, biomedical research, environmental engineering, and other STEM disciplines can qualify for NIW if their work significantly benefits the United States.
- Case Example: Matter of DHANASAR (AAO 2016) – In this case, the Administrative Appeals Office (AAO) established a new framework for NIW eligibility, highlighting the importance of contributions in STEM fields to the national interest. A researcher in aerospace engineering sought a NIW but was initially denied. In their appeal, the petitioner proved that their research in aerospace engineering was deemed to have significant merit and national importance while also demonstrating the capability to advance their research effectively.
- Healthcare and Medicine: Physicians, researchers, and healthcare professionals specializing in areas critical to public health, medical research, or underserved populations may qualify under NIW.
- Case Example: Matter of H-V-P- (AAO 2016) – In this case, the AAO established provided clarity for meeting the NIW standards as a medical care professional. A physician sought a NIW as a member of professions holding an advanced degree and a national interest waiver from the job offer requirement but was denied because the physician’s work as a specialty care physician did make them eligible. In their appeal, the petitioner proved they met the requirements through their past expertise, meeting eligibility for immigrant classification as a physician.
- Business and Entrepreneurship: Entrepreneurs, investors, and business leaders who create jobs, foster economic growth, or develop innovative technologies that benefit the U.S. economy can also qualify for NIW.
- Case Example: Matter of E-J-C-D-H– (AAO 2018) – In this case, the petitioner was initially denied stating that they were not an individual of exceptional ability. AAO sustained an appeal for the petitioner, an agribusiness entrepreneur, because the petitioner proved that he met three of the six exceptional ability criteria and that they were eligible for a NIW under the DHANASAR framework.
- Education and Academia: Professors, researchers, and educators who advance knowledge in critical fields, contribute to educational programs, or mentor students who go on to contribute significantly to U.S. interests.
- Case Example: Case in Re: 25673014 (AAO 2023) – In this case, an assistant professor of finance sought a NIW but was initially denied because they had not demonstrated that their work merited a waiver from the labor certification requirement. On appeal, the petitioner demonstrated with a preponderance of evidence that their work would impact real estate academia and industry, meeting the three prongs established by DHANASAR.
- Arts, Culture, and Athletics: Artists, athletes, and cultural contributors whose work enhances the nation’s cultural heritage, artistic landscape, or international reputation may also qualify for NIW. While specific cases in arts and athletics may not be as commonly cited in NIW jurisprudence, contributions to national cultural or athletic achievements can support eligibility.
- Case Example: Case in Re: 32204931 (AAO 2024) – In this case, the petitioner, a technology company, employed the beneficiary (an embedded systems architect) but was denied because the petitioner did not proof hat waiving the job offer requirement would be of national interest. In response, the petitioner proved with a preponderance of evidence that their presence was of national importance, satisfying the three prongs of DHANSAR.
These examples illustrate the diversity of professions that can potentially qualify for a National Interest Waiver, depending on their impact on the United States’ national interests as defined by immigration law and precedent cases. Each case is evaluated based on its unique merits and the evidence provided to demonstrate national interest.
Conclusion
Navigating the complexities of the NIW requirements demands meticulous effort and careful consideration. If you considering applying for a national interest waiver, please consider expert guidance from our immigration services which can guarantee that your application will be completed in a timely and accurate manner, maximizing your chances of obtaining NIW approval through your extraordinary abilities.
