What is an EB-2 National Interest Waiver

The employment-based, second preference category, EB-2 visa, is available to individuals who are members of professions holding an advanced degree or its equivalent, or a person who has exceptional ability. A national interest waiver (NIW) is a request that the job offer requirement and labor certification be waived because the individual’s work is in the national interest of the United States.

Who Qualifies For An EB2 NIW

To qualify under “exceptional ability,” the individual must be able to prove that they possess a level of expertise significantly above that ordinarily encountered in the sciences, arts, or business by meeting at least three of the following criteria or providing comparable evidence:

Official academic record showing that the individual has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to their area of exceptional ability;
Letters from current or former employers documenting at least 10 years of full time experience in the individual’s occupation;
A license to practice in the profession or certification for the profession or occupation;
Evidence that the individual has commanded a salary or other remuneration for services that demonstrates their exceptional ability;
Membership in a professional association(s); and
Recognition for the individual’s achievements and significant contributions to their industry or field by their peers, government entities, and professional or business organizations.

To satisfy the requirement for an advanced degree, the foreign national must be employed in a position that requires a graduate degree, such as a master’s or PhD, and the individual must possess that degree. The foreign national may also qualify if they possess a baccalaureate degree or foreign equivalent, plus five years of postbaccalaureate, progressive work experience in the field.

Benefits of an EB-2 NIW Visa

An NIW green card category offers a number of benefits:

Applicants for NIW green card can be self-petitioners and do not require employer approval or payment for this process. An applicant can sponsor themselves and their immediate family members.
The NIW category does not require that a foreign national have an employer. An attestation of future willingness and commitment to work in the area of national interest in enough. Contracts, offers of collaboration, can serve as evidence of future ability to make income in the U.S.
Applicants for this type of green card can pay all expenses and fees associated with the process and do not need to depend on a sponsoring employer.
Since an NIW waives the job offer requirement and permanent labor certification process, an individual can self-petition without needing to go through their employer. For employers, an NIW saves the company the costs associated with the permanent labor certification process and the necessary advertisement.
If the foreign national’s EB-2 NIW petition is approved, their immediate family members – spouse and unmarried children under the age of 21, are eligible to immigrate to the U.S. and secure green cards.
Premium processing is now available for EB-2 NIW petitions, ensuring a response from the USCIS within 45 calendar days.

What Factors does the USCIS Consider for a National Interest Waiver?

The endeavors that qualify for an NIW are not defined by statute. Instead, the USCIS considers three factors:

The proposed endeavor has both substantial merit and national importance.
The individual is well-positioned to advance the proposed endeavor.
On balance, it would be beneficial to the U.S. to waive the requirements of a job offer, and thus the permanent labor certification.

A wide range of fields may qualify for an NIW, including business, entrepreneurialism, science, health, technology, culture, and education. To determine whether the foreign national qualifies as “well-positioned,” the USCIS will review their education, skills, knowledge, and record of success, as well as models or plans for future activities, progress toward achieving the endeavor, and any documented interest from relevant entities or individuals. To evaluate the “on balance” requirement, the USCIS will consider a number of factors, which were outlined in Matter of Dhanasar¹ in 2016. These factors include the impracticality of a labor certification application, whether the U.S. would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available, and whether the foreign national’s contributions are sufficiently urgent to warrant forgoing the labor certification process. Other specific considerations include urgency in public health or safety, the possibility that the individual possesses unique skills that cannot be captured in the labor certification process, the potential to generate considerable revenue or economic revitalization, and the potential that the endeavor will lead to job creation.

What is Considered in the National Interest and how are STEM Fields Affected?

The “national interest” covers a broad variety of activities. In 1992, through the case of Mississippi Phosphate², the legacy Immigration and Naturalization Service determined that the following seven factors were to be considered in determining whether a foreign national’s presence in the country is in the “national interest”:

Improving the U.S. economy;
Improving the wages and working conditions of U.S. workers;
Improving education and training programs for U.S. children and underqualified workers;
Improving healthcare;
Providing more affordable housing for younger and/or older, poorer U.S. residents;
Improving the environment of the U.S. and making more productive use of natural resources; or
A request from an interested U.S. government agency.

If the individual’s proposed endeavor has the potential to broadly enhance societal welfare or cultural or artistic enrichments, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.

In this regard, the USCIS recognizes the importance of progress in science, technology, engineering, or mathematics (STEM) fields, especially in critical and emerging technologies (CETs) and other STEM areas important to U.S. competitiveness or national security. In particular, the USCIS may find that a STEM area is important to competitiveness or security when the foreign national is engaged in an endeavor that will help the U.S. remain ahead of strategic competitors or current and potential adversaries, or when it relates to a field that may contribute to the U.S. achieving or maintaining technology leadership. The USCIS considers a PhD in a STEM field related to the proposed endeavor to be an especially positive factor. Letters from interested government/quasi-government agencies are also given particular weight. Areas that qualify as CETs include advanced computing, advanced engineering materials, artificial intelligence, autonomous systems and robotics, biotechnologies, financial technologies, renewable energy generation, and space technologies, among others.

What Documents are Used To Support An EB2 NIW Visa

The following documents can be helpful to demonstrate the individual’s qualifications with regard to the abovementioned factors:

A description of the individual’s past and present research in plain terms that can be understood by a person unfamiliar with the field;
A detailed description of the individual’s narrow field of expertise in plain language;
Letters from various people—including those at universities, academic and research institutions, other companies and, most importantly, government representatives—attesting to the importance of the individual’s contributions;
Documentation evidencing prizes and awards that the individual has won, such as copies of all of fellowships, scholarships, grants, and other awards, as well as documentation regarding the organizations and institutions that awarded them. Please note that student awards are not considered for the purposes of this category;
Documentation regarding any membership in professional associations that require “outstanding achievement” of their members;
Information and documentation regarding citations and references to the individual’s work in other academic or major trade publications, together with copies of few most significant actual articles citing the individual’s work;
Information and documentation regarding the individual’s participation, either individually or on a panel, as the judge of the work of others, such as through the peer review process;
Information and documentation regarding the individual’s presentations and participation in international conferences and seminars;
Copies of all articles the individual has published;
Information regarding the impact factors of the publications in which the individual’s articles appear;
Documentation evidencing the “international circulation” of the publications in which these articles have appeared, such as copies on, the editorial board of the publications, location of publications, languages of publications, etc.;
Documentation of any media appearances the individual has made;
Copies of any patent applications on which the individual appears;
An updated C.V. or resume; and
Copies of college diplomas and transcripts documenting advanced degree or materials evidencing exceptional ability.

Contact Us Today

Contact Ellen Freeman and her expert legal team to represent you in your EB-2 visa case. They’ve helped thousands of clients obtain national interest waivers over the past decade. Fill out the form below to schedule a consultation with Ellen and her team.

Footnotes:

26 I&N Dec. 884 (AAO 2016)
EAC-92-091-50126 (AAU July 21, 1992)