The National Interest Waivers (NIW) can only be filed with EB2 green card petitions and are usually granted to persons who qualify for the exceptional ability subcategory under the EB2 green card petition. The National Interest Waiver takes away the PERM labor certification requirement and the U.S. sponsoring employer requirement of the regular EB2 green card petitions when doing so would be in the interest of the United States.
In other words, under the INA §203(b)(2)(B), the National Interest Waiver (NIW) allows the person to self-sponsor their EB2 green card petition without the requirements of a U.S. sponsoring employer or an approved PERM labor certificate.
Alternatively, a physician’s national interest waiver (PNIW) can be filed with the EB2 green card petition (usually under the advanced degree subcategory) for doctors who work in areas that have a shortage in healthcare professionals or are employed by a U.S. Department of Veteran Affairs facility to waive the PERM labor certificate requirement and the U.S. sponsoring employer requirement.
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Table of Contents
A person qualified for a National Interest Waiver must first qualify for the EB2 green card petition as an advanced degree professional or a person with exceptional ability, and then the person must prove that their employment will benefit the interests of the United States as a nation.
A person qualified for an EB2 green card under the advanced degree subcategory must have (1) an advanced degree and (2) a job offer where the position requires that specific type of degree in the United States. The advanced degree can be (1) a U.S. master’s degree or a higher degree (or its foreign equivalent), or (2) a U.S. bachelor’s degree (or its foreign equivalent) and at least 5 years of post-college progressive work experience in the specialty. For a position that requires a doctoral degree (Ph.D.), the required doctoral degree cannot be substituted by a combination of educational degrees and/or work experience.
Please read the EB2 advanced degree green card overview for more details.
A person qualified for an EB2 green card under the exceptional ability subcategory must (1) have exceptional ability in the sciences, arts, or business and (2) their employment in the United States must prospectively and substantially benefit the economy, cultural or educational interests, or welfare of the nation. The exceptional ability here is a degree of expertise that is significantly higher than the ordinary. Professors, entertainers, and athletes are professions that can be included under the EB2 green card petitions.
Please read the EB2 exceptional ability green card overview for more details.
There are 4 main requirements that need to be satisfied for National Interest Waivers filed with EB2 green card petitions: evidence must be provided to the USCIS to show that (1) the person is qualified as an advanced degree professional or a person with exceptional ability under the EB2 green card petition, (2) the person’s proposed endeavor has both substantial merit and national importance, (3) the person is well-positioned to advance the proposed endeavor, and (4) on balance, the United States as a nation will benefit from waiving the PERM labor certification and job offer requirement.
The original wording for the requirements of the EB2 national interest waiver can be found in the case Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016).
Requirements of the EB2 National Interest Waiver
The evidence provided to the USCIS for the EB2 National Interest Waiver must show that the person is qualified as an advanced degree professional or a person with exceptional ability under the EB2 green card petition and the 3 additional requirements listed below must be satisfied:
The person's proposed endeavor has both substantial merit and national importance
Under the EB2 NIW green card petition (National Interest Waiver), the person’s proposed endeavor is required to have both substantial merit and national importance. The endeavor can be in a wide range of areas such as science, technology, business, entrepreneurialism, education, health, or culture. The substantial merit element should be focused on the person’s specific endeavor and not the person’s field as a whole. For example, focus should be placed on a person’s specialization in pediatric cardiac transplant surgery and not the field of cardiology as a whole. The national importance element should show national or international impact within a particular field, however, it does not limit endeavors that are focused in one geographic location of the United States because there may still be national importance in those circumstances.
Proof that the person’s endeavor has potential for significant economic impact can be a strong supporting factor but may not be necessary in certain areas such as in pure science, research, and other furtherance of human knowledge.
The person is well positioned to advance the proposed endeavor
Under the EB2 NIW green card petition (National Interest Waiver), the person is required to show that they are well-positioned to advance their proposed endeavor. The focus here is placed on the person’s potential to make contributions that can benefit the national interest of the United States through their work in the field. The person under this EB2 National Interest Waiver requirement does not need to show that they will “more likely than not” to ultimately succeed in advancing the proposed endeavor, just that the person has the qualifications and potential to successfully work towards the proposed endeavor.
Factors that will be used by the USCIS to determine whether the person is well-positioned to advance the proposed endeavor include but is not limited to:
- education, knowledge, skills
- history of successes in similar or related endeavors
- progress completed toward achieving the proposed endeavor
- plans or models for future activities
- interest from potential users, clients, investors, or other relevant individuals or entities
On balance, the United States as a nation will benefit from waiving the PERM labor certification and job offer requirement
Under the EB2 NIW green card petition (National Interest Waiver), the person is required to show that on balance (after weighing the positive and negative factors) the United States would benefit as a nation by waiving the requirements of a PERM labor certificate or a job offer from a U.S. employer. The purpose under this EB2 NIW requirement is to determine whether there is a difficulty for the U.S. sponsoring employer to obtain a PERM labor certificate or a difficulty for the person to secure a job offer from a U.S. sponsoring employer.
Factors that will be used by the USCIS to determine whether granting the person’s waiver will benefit the United States as a nation on balance include but is not limited to:
- if the United States will still benefit from the person’s national contributions even when there are available and qualified U.S. workers
- if there is urgency to avoid going through the normal PERM labor certification process
- if it is impractical to require the person to have a job offer or obtain a PERM labor certificate
Some examples that may qualify under this EB2 NIW green card petition requirement include when the person’s skills and knowledge are too unique to fit into a PERM labor certificate, or the person is an inventor who is self-employed and does not fit into the requirement of obtaining a job offer from a U.S. sponsoring employer.
Other Factors to Consider
Factors that were used in old (pre-NYSDOT) national interest waiver cases can still be helpful to determine whether the person qualifies for a national interest waiver:
- improvement of the United States economy
- improvement of the U.S. workers’ wages and working conditions
- improvement of the education and programs for U.S. underqualified workers and children
- the improvement of health care
- providing more affordable housing
- improvement of the environment in the United States and supporting a more productive use in natural resources
- a request from an interested government agency
The evidence provided to the USCIS for the EB2 National Interest Waiver must show the importance of the person’s work, the person’s qualifications, and how there is a benefit for the United States on a national level. Commonly used documents to prove that a person is qualified for an EB2 National Interest Waiver includes but is not limited to:
- Letters and testimonials from experts or professionals in the field of expertise (should include the authority and credentials of the writer)
- Awards, prizes, grants received
- Media coverage, publications, articles, reports, critical reviews
- Contracts or agreements
- Letters from former, current or future employer
- The person’s work
- Patents
- Licenses
The total time an EB2 green card filed with a National Interest Waiver takes is consisted of the processing time for (1) the EB2 NIW green card petition (Form I-140 and the National Interest Waiver) filed with the USCIS, and (2) the change of status when the person’s priority date becomes current by filing the Form I-485 application if adjusting status within the United States or the DS-260 application if doing consular processing at a U.S. consulate or embassy located outside the United States.
Factors that influence the EB2 NIW green card petition processing time usually include but is not limited to where the person (or spouse) was born, if there was any Request for Evidence (“RFE”) issued, and the caseload of the USCIS service center and the U.S. consulate or embassy.
A rough estimate for the Form I-140 petition is around 6 to 12 months. Premium processing is not available for EB2 green card petitions that are filed with National Interest Waivers.
Priority Date for Status Change
There are two parts in the processing time for a change of status: (1) the time to when the person’s EB2 NIW green card petition priority date becomes current which can range from no wait time to multiple years depending on what country the person or their spouse was born in, and (2) the time to process Form I-485 for adjustment of status or DS-260 for consular processing which a rough estimate can range from 4 to 15 months.
After the USCIS approves the EB2 NIW green card petition (Form I-140 and the national interest waiver), the person will then wait for their priority date to become current to apply for a change of status into a green card holder (lawful permanent resident). The priority date for EB2 NIW green card petitions (EB2 National Interest Waiver) is the date that the USCIS receives the immigration petition (Form I-140). For people from most countries, their EB2 NIW green card petitions will usually have a current priority date at the time of filing (or a priority date with a relatively short wait time to become current). For people from China and India, the wait time for their priority date under an EB2 NIW green card petition to become current is relatively long with this green card visa category.
The reason as to why there are different wait times for a priority date to become current is due to the total limit on how many green cards (immigrant visas) can be given out each year and a separate limit on how many green cards are allotted for each country. For people born in certain countries (based on country of birth and not country of citizenship) such as China or India, there is usually not enough available visas (green cards) each year due to high-volume immigration from those countries so they would have to wait for their visas (green cards) to become available which would be based on when their priority date becomes current in the monthly Visa Bulletin released by the U.S. Department of State (DOS).
Cross-Chargeability
Cross-chargeability is often used when the person’s country of birth has a visa backlog problem but the country of birth for the person’s spouse does not. The person born in the country that has a visa availability backlog problem will use the cross-chargeability rule to be charged against (use the quota of) the spouse’s country instead (this usually results in obtaining the green card much earlier). For example, a person born in China (which usually has a visa availability backlog problem) with a spouse born in South Korea (which does not have a visa availability backlog problem): both of them can use the quota of South Korea instead of China when they apply to change into their green card visa status. It does not matter which person is the primary person pursuing the green card petition.
Minor children can be charged to either parent’s country of birth, or in some circumstances the child can be charged to a third country that neither parent was born in or had residence in when the child was born. For example, both parents were born in Japan but their child was born in China during a temporary vacation there: the child can be charged against the quota of Japan. Under most circumstances, derivative beneficiaries (such as the spouse or children of green card visa applicants) cannot be eligible to apply to change into their green card visa status before the principal green card visa applicant.
Please note that parents cannot use their minor children’s country of birth under the cross-chargeability rule. For example, both parents were born in China and their child was born in Japan. The parents cannot use Japan which is their child’s country of birth and would still need to use China which is their own country of birth to wait for their green card.
Changing into the green card visa status (the lawful permanent resident immigrant visa status) is the final step in being able to work freely and live permanently in the United States. There are two ways to obtain the green card visa status: adjustment of status and consular processing.
Adjustment of status is usually for a person who is already in the United States with a valid nonimmigrant visa status and has maintained a lawful visa status throughout their time within the United States. On the other hand, consular processing is for a person living outside the United States or for a person who is ineligible in adjusting their status in the United States.
For a person who is residing overseas (outside the United States) or a person who is ineligible for an adjustment of status with the Form I-485 application, consular processing must be done to obtain the EB2 NIW green card visa status (i.e., lawful permanent resident). Consular processing usually involves the person attending an in-person interview at the U.S. consulate or embassy located in their home country. In certain circumstances, a person can do consular processing in another country as a “Third Country National.”
After the interview approval at the U.S. consulate or embassy, the person would have to be admitted entry into the United States by the CBP officer at the border (usually at the airport). In other words, the person would have to physically enter the United States after their interview approval as the final step for their EB2 NIW green card (EB2 National Interest Waiver) visa status to be activated.
For a person who is already in the United States with a valid nonimmigrant visa, there are usually two options available to obtain the EB2 NIW green card (EB2 National Interest Waiver) visa status (Lawful Permanent Resident):
(1) Adjustment of Status: this is the more commonly chosen option where the person would file a Form I-485 application to adjust their status without leaving the United States. The person would attend an in-person interview at a local USCIS office in the United States and the interview approval would serve as the final step for their EB2 NIW green card (EB2 National Interest Waiver) visa status to be activated.
The adjustment of status application (Form I-485) can be filed when the person’s priority date becomes current in the Visa Bulletin which means that there are no backlogs in visa availability for the person’s country of birth (not country of citizenship). This can happen while the green card petition (Form I-140) is still pending (i.e., before approval) with the USCIS or after the green card petition (Form I-140) is approved by the USCIS. It can also happen in concurrent filings (Form I-140 and Form I-485 sent together) where the person’s priority date is already current at the time of filing the green card petition (Form I-140) to the USCIS.
When the adjustment of status application (Form I-485) is filed, applications for the employment authorization document (Form I-765, commonly known as the “EAD card”) and the travel document (Form I-131, commonly known as “Advance Parole”) can also be filed at the same time.
The EAD card allows unrestricted employment where a person can change their job freely and can legally work for any employer in the United States, unlike a work visa such as an H1B visa which restricts a person to work for a specific employer in the United States.
Advance parole allows a person to travel internationally while their adjustment of status is still pending. If a person has a pending adjustment of status application (Form I-485) with the USCIS but leaves the United States without advance parole and does not have a certain valid nonimmigrant visa status (H1B visa, H4 visa, L1 visa, L2 visa, K3 visa, K4 visa, V visa) that allows international travel, their adjustment of status will be considered abandoned.
(2) Consular Processing: this is usually chosen if a person cannot show that they have maintained their lawful visa status in the United States or when the processing time for consular processing is much faster than the adjustment of status.
When the EB2 NIW green card petition (Form I-140 and the National Interest Waiver) is approved, the person’s spouse and dependent children (unmarried and under the age of 21) may be eligible to enter the United States under the E-21 or E-22 immigrant status, respectively.
The National Interest Waiver is for persons who can show that their employment can benefit the United States on a nation level and it is usually filed with an EB2 green card petition under the exceptional ability subcategory. Under the EB2 NIW green card petition, the person must show that (1) they are qualified for an EB2 green card in either the advanced degree subcategory or the exceptional ability subcategory, (2) their proposed endeavor has both substantial merit and national importance, (3) they are well-positioned to advance the proposed endeavor, and (4) the United States as a nation will benefit from waiving the PERM labor certification and job offer requirement.
The EB2 National Interest Waiver green card petition is one of the faster ways to become a lawful permanent resident in the United States. This is partly due to the fact that the National Interest Waiver forgoes the need to go through a lengthy PERM labor certification which most employment-based green card visa categories require.
The National Interest Waiver filed with EB2 green card petitions can be self-sponsored which means there does not need to be a U.S. sponsoring employer and the person can start and pay for their own EB2 National Interest Waiver green card petition (EB2 NIW).
For people who qualify for an EB2 NIW green card petition (National Interest Waiver), there is a possibility that the person also qualifies for an EB1 green card petition (that requires a higher standard in eligibility) which includes: (1) persons who are nationally or internationally recognized for their extraordinary ability in the sciences, arts, education, business, or athletics (EB1a green card), (2) professors or researchers who are internationally recognized as outstanding in their academic field (EB1b green card), or (3) executives or managers of multinational companies (EB1c green card). EB1 green card petitions do not require a PERM labor certification and the EB1a green card subcategory (for aliens of extraordinary ability) does not even require a specific U.S. employer for the petition just proof that the person will continue to work in their field of expertise.
For people who do not qualify for the National Interest Waiver EB2 green card petition (EB2 NIW) yet, the other alternatives that require a similar or lower standard include: (1) EB2 green card petitions under the exceptional ability subcategory, (2) EB2 green card petitions under the advanced degree subcategory, (3) EB2 green card petitions under Schedule A Group II, (4) EB2 green card petitions filed with a Physician’s National Interest Waiver (EB2 PNIW), or (5) EB3 green card petitions (Professional, Skilled, Other Workers).
The exceptional ability EB2 green cards are for persons who have exceptional ability in the sciences, arts, or business. The advanced degree EB2 green cards are for persons who have at least a master’s degree and have a job offer for a position that requires that specific type of degree. The Schedule A Group II EB2 green cards are for persons who have exceptional ability in the performing arts, sciences, or arts. A physician’s national interest waiver can be filed with an EB2 green card petition for certain doctors who agrees to provide healthcare services in certain U.S. government designated facilities or medical personnel shortage areas.
The EB3 green card petition are for 3 groups of workers: professional workers, skilled workers, and other unskilled workers. Professional workers under the EB3 green card petition are required to be a member of a profession with at least a bachelor’s degree (or its foreign equivalent) and a job offer that requires a bachelor’s degree. Skilled workers under the EB3 green card petition are required to have qualifications to perform a job that requires at least 2 years of training or work experience. Other workers under the EB3 green card petition are only required to be able to perform an unskilled job that requires less than 2 years of training or work experience. Similar to EB2 green card petitions, the EB3 green card petitions also generally require a sponsoring U.S. employer and a PERM Labor Certification.
If you have an EB2 National Interest Waiver green card (EB2 NIW) immigration question, please fill out our contact us form or send us an email with some basic information about your background and your immigration needs. We will do our best to respond within 48 hours.
How we can help?
Kylie Huang Law’s immigration attorney will help identify whether the EB2 NIW green card (National Interest Waiver) is the appropriate immigrant visa category for the client’s professional background. We will work closely with our client to prepare a convincing case for their EB2 NIW green card petition and we will also strategize on how the EB2 national interest waiver should be presented to achieve the best chances of approval. It is strongly advised and common practice to retain an immigration attorney for an EB2 NIW green card petition (National Interest Waiver) due to the complexities in the immigration process and visa requirements.
What does the typical process look like to retain (hire) us?
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- Attend scheduled appointment (typically a phone call or zoom meeting)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule an appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (signing a contract to hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming contents of documents that will be submitted
- Filing the case
- Following up on the status of the case
- Close the case when a final determination is issued
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- Fill out the form (on what your immigration needs are)
- Sign up and log into the client portal to schedule appointment
- Attend scheduled appointment (typically a phone call or zoom)
- Retainment (hire us)
- Start processing case
- Gathering required documents
- Preparing paperwork
- Confirming content of documents that will be submitted
- Filing the case
- Following up on the case status
- Close the case when a final determination is issued