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National Interest Waiver

What is a National Interest Waiver (NIW)?

The biggest advantage of the National Interest Waiver (NIW) is that the foreign national does not need a sponsor under this category. As mentioned above in the EB-2 visa category, normally a Labor Certification and a job offer is needed for an immigrant petition. However, a foreign national/alien with exceptional ability may try to seek a National Interest Waiver, or NIW, which waives those requirements. The National Interest Waiver waives the Labor Certification and job offer requirements, because the alien’s employment in the U.S. would be in the best interest of the United States. Unfortunately, there is no exact definition or a statute that states the positions which qualify for a National Interest Waiver. However, specific criteria have to be met. The criteria are described below.

What are the requirements for a National Interest Waiver (NIW)?

For an EB-2 visa applicant to qualify for a National Interest Waiver, the applicant must show that:

  1. The alien’s employment must be in an area of substantial intrinsic merit. If the visa beneficiary is being paid to do a particular kind of research, or if the work has at least some sort of artistic or other value, then the work of the alien will more than likely be considered to be of “substantial intrinsic merit.”
  2. The proposed benefit must be national in scope. The alien’s contribution must provide benefits that impact a national scale and not just a limited region.
  3. The national interest would be adversely affected if a labor certification were required for the alien. In order to meet this final and most important part of the test, the petitioner must prove that the visa beneficiary will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the same minimum qualifications. The labor certification process exists to protect the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment. Therefore, an alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest protected by the labor certification process.

An EB-2 visa applicant must meet all three parts of the test in order to qualify for the National Interest Waiver and become eligible to waive the Labor Certification requirement. As well, the applicant must meet standard EB-2 criteria mentioned above: an advanced degree. A U.S. academic or professional degree or a foreign equivalent degree above that of a baccalaureate/bachelor’s degree will be sufficient. In the absence of an advanced degree, a baccalaureate/bachelor’s degree or foreign equivalent, plus at least five years of progressive experience in the specialty is considered the equivalent of a master’s degree. In the alternative, the applicant can claim exceptional ability, i.e., a degree of expertise significantly above that ordinarily encountered in the alien’s field of expertise.

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