EB-2 National Interest Waiver

The National Interest Waiver (NIW) application allows an individual to self-petition for permanent residence as long as the work of the individual is in the national interest. The NIW application waives the requirement for a labor certification, a step that can benefit many international individuals working in the sciences, arts, professions, or business. However, to be successful, individuals must first meet the threshold requirements associated with the EB-2 preference category by holding an advanced degree or by having evidence of exceptional ability, defined roughly as experience significantly above that ordinarily encountered in the sciences, arts, professions, or business.

The challenge of an NIW case is meeting requirement under a three-pronged test:

  1. The individual must work in the U.S. in a field of substantial intrinsic merit,
  2. The benefit of the individual’s work must be national in scope, and
  3. The benefit of the individual’s work is so important to the national interest that it outweighs the national interest inherent in the labor certification process, which is designed to protect U.S. workers.

The success of the application lies not only in proving the past accomplishments allowing that individual to rise to an exceptional level of prominence, but that the work of that individual indicates future benefits to the national interests of the United States. Fields commonly considered to be of substantial intrinsic merit have included medical research, renewable and sustainable energy or product development, and military and national security research.

The requirement that the benefit be national in scope tends to exclude those that do work having substantial intrinsic merit such as teaching, counseling, community organizing, and non-research based health care work, because their impact is local in scope. Demonstrating a business endeavor will create jobs in the U.S. may qualify for an NIW, but again proving the enterprise is national in scope can be more difficult. An applicant that can demonstrate their lesson plan, business model, or community development program is being applied nationally to improve the U.S. economy or lives of individuals residing inside the U.S. would have a better chance of satisfying the second prong.

The third requirement is the most difficult, and is most successfully met by showing that it would be impossible to fairly or logically test the U.S. labor market because the individual’s work is of such merit, and the individual’s contributions to the research project so critical, that forcing a comparison with any other U.S. worker would damage or delay the outcome.

While requirements of an NIW application share similarities with the Extraordinary Ability and Outstanding Researcher or Professor classifications, it is worth noting that it is still a second-preference category petition, meaning that those from countries with a visa backlog in the EB-2 preference category will still have to wait to get a green card. The Sivaraman firm will evaluate every NIW case for the possibility it could qualify under one of the EB-1 classifications, and discuss the best strategy based on your case.

More Information on Permanent Residence Options for Academics

If you have additional questions, we welcome you to contact an immigration attorney at Sivaraman Immigration Law to request a consultation.