Who Qualifies for a National Interest Waiver Green Card?

A national interest waiver (NIW) is a method of obtaining work-based U.S. lawful permanent residence (a green card) without an employer as the sponsor, which can be used if you are engaged in work that benefits the United States economy, education system, health, or some other aspect of society.

This waiver is basically a subset of the EB-2 employment based, category for obtaining U.S. lawful permanent residence. The key to obtaining this waiver, however, is understanding how to prove that your work truly will offer important benefits to the United States. Below, we discuss in more detail:

• what exactly the waiver overcomes
• reasons to seek an NIW
• situations where you wouldn't want to seek an NIW
• legal requirements to receive NIW approval
• application process for NIW, and
• types of work that qualify a foreign national for an NIW.

What Is Being Waived for This Type of EB-2 Green Card?

Normally, an EB-2 category green card process requires an employer to sponsor someone by offering a permanent job and also "testing" the labor market to see if there are any qualified U.S. workers who are available instead. This process, known as PERM labor certification, involves advertising the job through a rigid series of steps. It's a process that can be lengthy and expensive. What's more, the government agency reviewing the case can reject or deny it if it finds that the employer identified a suitable U.S. worker but did not offer the job to that person, or if there were inconsistencies in the application process.

With the national interest waiver, on the other hand, United States Citizenship and Immigration Services (USCIS) decides that the person's work is so important to our country that there's no need to give first priority to a U.S. worker. It will thus "waive" or set aside the requirements of employer sponsorship and labor certification.

What Are the Advantages to Applying for a National Interest Waiver?

There are several benefits to obtaining this waiver.

One, as mentioned, is that you do not need to find an actual job or have an employer sponsor your application. While it is possible to have employer sponsorship, you could decide to file the national interest waiver by yourself (a "self-petition") if your employer is unwilling, or if you do not have a specific job offer, or if you would like the flexibility of starting your own company or being able to change employment in the near future without jeopardizing your immigration status.

Two, you do not have to go through the labor certification, or PERM, process, as is normally required for EB-2 and EB-3 categories (referred to above). This saves time, money, and effort.

Three, while you do have to show demonstrated achievements in your field and that your work would be beneficial to the U.S., you do not have to prove you have "extraordinary" ability, as required in the EB-1 category. Therefore, some people believe that a national interest waiver is easier to obtain.

Four, if USCIS approves your national interest waiver application, and you are working in the U.S. on an H-1B visa, you might be able to extend your H-1B status beyond the usual six-year limit if you won't have your green card by then.

Are There Disadvantages to Applying for a National Interest Waiver?

Because of the amount of documentation required to prove that you merit an approval, it could take some time to prepare a persuasive NIW application. Also, USCIS officers have a great deal of discretion in deciding whose work is "in the national interest."

In the past, another issue was that expedited, 15-day adjudication of the petition in return for a supplemental fee, known as "premium processing," was not available from USCIS in this category. Therefore, the processing time could be much longer than for an I-140 filed under the EB-1 category, in which premium processing was available.

Although Congress authorized USCIS to expand premium processing to include NIW cases in 2020, it wasn't until 2022 that USCIS finally got around to implementing it. The premium processing timeline for NIW cases is 45 calendar days. The supplemental fee for this, starting February 26, 2024, is $2,805.

What Are the Legal Requirements for a National Interest Waiver?

To be eligible for a national interest waiver, you must first qualify for the EB-2 category, by having either an advanced degree or exceptional ability. In addition, you must satisfy a rigorous set of criteria related to your area of expertise. Let's look briefly at each of these in turn.

To fit the advanced-degree requirement, you would need to have a Master's, Ph.D., or other post-baccalaureate degree (or a Bachelor's degree and five years of experience).

Alternatively, to fit the "exceptional ability" in your field requirement, you would need to assemble extensive documents including at least three of the following:

• An official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability.
• Letters documenting at least ten years of full-time experience in your occupation.
• A license to practice your profession or certification for your profession or occupation.
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability.
• Membership in one or more professional associations, usually ones that require achievement in order to be a member.
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, or professional or business organizations.

According to USCIS, "other comparable evidence" of eligibility is also acceptable, but the agency usually requires applicants to first show that evidence from the above categories is unavailable or inapplicable.

In practice, even if you choose to apply based on your advanced degree, you will likely have to show you are highly skilled in your field as well. That's because, to obtain a national interest waiver, you must demonstrate that your employment will greatly benefit the United States.

Moving on, after establishing you have an advanced degree or exceptional ability (or both), you will need to satisfy all parts of a three-prong test established in a case called Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). This involves proving that:

• the work you propose to do in the U.S. has both substantial merit and national importance
• you are "well positioned" to advance your proposed work, and
• on balance, it would be in the national interest to grant you a waiver of the usual employment and labor certification requirements.

How Should People Apply for the National Interest Waiver?

The documents demonstrating your qualifications for the national interest waiver should be submitted with the employer's or the applicant's I-140 petition to USCIS.

If a visa number is immediately available upon approval, as shown on the Department of State's most recent Visa Bulletin, you may also apply for a green card at the same time if you are in the U.S., through the process known as adjustment of status. You'll want to think carefully about submitting an adjustment application together with the NIW petition, however, because if USCIS denies the NIW, the adjustment application no longer has a supporting petition and therefore will be denied too. Because there is substantial discretion involved in the NIW petition, the conservative approach is to obtain the NIW approval before submitting an adjustment application.

If a visa number is not immediately available, you will have to wait until the priority date (date the I-140 is submitted) is reached. This somewhat complex process is explained in How Long Is the Wait for Your Priority Date to Become Current?

What Type of Work Qualifies for a National Interest Waiver?

Since "substantial merit" and "national importance" are not clearly defined in the law, there is a great deal of flexibility in this category. It isn't so much one's broad profession that is important, but rather, the work that you normally do or focus on.

For example, although one might argue that teachers in general do work of substantial merit or national importance, teaching alone does not qualify one for an NIW. If the teacher, however, has developed a method of reducing educational inequalities in school systems, that might qualify as work of national importance to our country's educational system. Scientific advances or cutting edge technology work might also qualify.

Fields with "substantial intrinsic merit" tend to include those that improve the national economy; help the wages and/or working conditions of U.S. workers; contribute to the health of U.S. residents; contribute positively to education; improve access to affordable housing; or make a positive contribution to the environment or use of natural resources.

Finally, in January 2022 USCIS updated its Policy Manual to place particular emphasis on STEM graduates and entrepreneurs seeking national interest waivers. If you have a STEM graduate degree or are an entrepreneur, you will want to highlight this in your petition, because the new guidance explains that these are highly favorable factors in adjudicating NIW petitions.

Examples of successful national interest waiver cases include: an entrepreneur who developed an algorithm for an emergency response phone system to help 911 centers locate the caller more quickly and accurately, thereby saving lives; a researcher with graduate degrees in Biomedical Engineering and a Bachelor's degree in Electrical Engineering whose work led to greater understanding of sudden cardiac death; and an academic sociologist whose expertise in studying Balkan criminal syndicates in the U.S. assisted the FBI and the judicial system, and would thus improve safety and reduce crime.

Get an Attorney's Help With an NIW

The employment-based immigration process can be one of the most direct routes to obtaining a green card (U.S. permanent residence). However, the paperwork and legal requirements are intense, and it's easy to make mistakes that lead to denial. Normally, the employer of an immigrant would hire an attorney to assist. So if you hoping to go it alone, your best bet is truly to discuss your case with an experienced immigration attorney.