A national interest waiver is a method of obtaining U.S. lawful permanent residence (a green card) without an employer as 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.
Normally, an EB-2 category green card process requires an employer to sponsor someone by offering a permanent job and “testing” the labor market to see if there are any qualified U.S. workers who are available instead.
This process, known as 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 may reject or deny it if it finds that the company identified a suitable U.S. worker but refused to hire 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.
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 feel that a national interest waiver is easier to obtain.
Because of the amount of documentation required to prove that you merit an approval, it could take some time to prepare a persuasive application. Also, USCIS officers have a great deal of discretion in deciding whose work is “in the national interest.”
Another issue is that expedited adjudication of the petition in return for a supplemental fee, known as “premium processing,” is not available from USCIS in this category. Therefore, the processing time might be longer than for an I-140 filed under the EB-1 category, in which premium processing is available.
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 showing that you satisfy at least three of the following:
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 documents demonstrating your qualifications for the national interest waiver should be submitted with the employer 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.
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?
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 we might argue that teachers in general do work of substantial merit or national importance, teaching alone does not qualify one for a waiver. 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.
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.