EB-2 National Interest Waiver (NIW)

National Interest Waiver (NIW) petition falls in the second-preference group of employment-based immigration petitions. There are two different types of second-preference Employment-Based Immigration.

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• EB-2 PERM (employer)
  Applicants must obtain a job offer and labor certification. The employer will file EB-2 I-140.For more information, please click EB-2 PERM.

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• National Interest Waiver (No employer)
  A National Interest Waiver (NIW) is a special petition that falls in the employment-based, second-preference (EB-2) immigration category. 1）employer 2)job offer and labor certification. An NIW requests these requirements be waived for the sake of the “national interest of the United States,” thus allowing an applicant to apply for this status without a labor certification or a job offer from a U.S. employer. The petitioner/beneficiary may file an NIW I-140 petition on behalf of him- or herself. （INA Section 203 b.2) B) , 8 U.S.C. Section 1153 b)2)B) & 8 C.F.R. Section 204.5. k) 4) 

The EB-2 National Interest Waiver (NIW) is a category within the employment-based immigration system that allows individuals with an advanced degree or exceptional ability to apply for U.S. permanent residency without requiring a specific job offer from a U.S. employer or undergoing the labor certification (PERM) process. The NIW is granted to individuals who can demonstrate that their work has substantial merit and national importance to the United States.

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Unlike other employment-based green card categories, NIW applicants must show that their contributions significantly benefit the U.S. economy, culture, healthcare, education, or another area of national interest. The approval process is based on the Matter of Dhanasar criteria, which evaluates whether the applicant is well-positioned to advance their proposed work and whether waiving the job offer requirement is beneficial to the U.S.

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This category provides flexibility for professionals, researchers, entrepreneurs, and experts in various fields to pursue permanent residency based on their own accomplishments and future contributions rather than a job offer from a U.S. employer.

The provisions of the Immigration & Nationality Act on EB-2 NIW are very abstract. While each NIW case is adjudicated on its individual merits, the burden of proof is always on the applicant or beneficiary to establish that exemption from labor certification will be in the national interest of the U.S. Immigration & Nationality Act has not provided clear provisions on how to determine whether aliens are in line with the specific criteria and conditions of national interests. The United States follows European and American legal system, so NIW standards have been changed accordingly with the judgment of cases in history.

Phase 1: Pre NYSDOT(Prior to 1998)
Prior to 1998, the USCIS AAU(The Administrative Appeals Office) gave seven criteria to determine whether the applicant met the requirements:
1) Improving the U.S. economy;
2) Improving wages and working conditions for U.S. workers;
3) Improving education and programs for U.S. children and underqualified workers;
4) Improving health care;
5) Providing more affordable housing;
6) Improving the U.S. environment and making more productive us of natural resources; and
7) Interested government agency request

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Phase 2: NYSDOT(1998-2016)
In the case of the New York State Department of Transportation(EAC 96 063 51031, AAO August 7, 1998), the Administrative Appeals Office established the standard by which National Interest Waivers are approved or denied.
Over the next 20 years, NYSDOT's criteria have been guidelines for NIW application conditions:
1) The beneficiary must seek to work in an area of substantial intrinsic merit;
2) The beneficiary’s work must have a benefit which will be national in scope;
3) The beneficiary must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The national interest would be adversely affected if a labor certification were required for the beneficiary.

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Phase 3: Matter of Dhanasar(2016-present)
On December 27, 2016, In the case of Matter of Dhanasar, the Administrative Appeals Office argued that the definition of criteria for NIW applications initially established by NYSDOT was too vague. So, AAO established new criteria to measure NIW application conditions for national interests. If you would like to know more about Matter of Dhanasar, please click here.
USCIS may grant a national interest waiver if the petitioner demonstrates:
1) that the applicant’s proposed endeavor has both substantial merit and national importance;
2) that the applicant is well positioned to advance the proposed endeavor; and
3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

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To qualify for EB-2 NIW, applicants must meet two primary requirements:

1. Educational or Skill-Based Qualification

Applicants must meet ONE of the following:

✔ Advanced Degree

• A U.S. Master’s, Ph.D., or professional degree (or a foreign equivalent).

• If holding only a bachelor’s degree, at least 5 years of progressive experience is required.

✔ Exceptional Ability: Demonstrated expertise beyond the norm in their field, with evidence such as:

• Publications, patents, or major research contributions

• High salary compared to others in the field

• Awards or industry recognition

• Membership in prestigious professional organizations

2. Meeting the NIW "National Interest" Criteria

Applicants must satisfy ALL THREE of the following Matter of Dhanasar requirements:

✔ Substantial Merit & National Importance

• The applicant’s work must benefit key U.S. sectors such as science, technology, healthcare, education, national security, or economic growth.

• Evidence: Research findings, innovations, industry impact, or government recognition.

✔ Well-Positioned to Advance the Work

• The applicant has a strong record of past achievements and is in a position to continue making valuable contributions.

• Evidence: Publications, patents, funding, awards, employment history, and recommendation letters.

✔Balancing Test: The U.S. Benefits from Waiving Job Offer & PERM

• USCIS must determine that the advantages of approving the petition outweigh the need for labor certification.

• This means that the applicant’s contributions are significant enough that requiring an employer sponsorship would be unnecessary.