National Interest Waiver

The National Interest Waiver (NIW) is available under section 203(b)(2) of the Immigration and Nationality Act to the second employment-based immigrant classification (EB-2) members of the professions holding an advanced degree or aliens of exceptional ability in sciences, arts or business. EB-2 aliens who prove that their presence in the U.S. is in the national interest may seek exemption from the job offer and labor certification requirement. These individuals by virtue of the waiver of the job offer may sponsor themselves for permanent residence.

A national interest waiver enables qualified aliens and their employers to avoid the qualifying limitations involved in the complex PERM computerized labor certification process administered by the U.S. Department of Labor ("DOL"). This PERM process requires every employer to demonstrate to the DOL, through a prescribed objective recruitment process, that there is not a qualified U.S. worker who meets the normal minimum requirements for the job position currently available for the specific job position. Problematically, the PERM computerized process uses restrictive ONET SVP requirement to limit the normal minimum requirements available to the employer for available U.S. worker documentation. If and when the computerized PERM process is satisfied with an application will it be successfully completed and approved. Only then will the DOL "certify" the job-position to USCIS. In the event of such certification, a petition based thereon may be filed for processing with USCIS.

The petitioner who sponsors herself/himself based upon her/his outstanding achievements and professional knowledge is in control of her/his own fate. The NIW and immigrant petition is the sole property of the petitioner and remains valid regardless of employment status.

The USCIS defines an Alien of Exceptional Ability as a professional who has a degree of expertise above that ordinarily encountered in his or her field. To show the INS that you are an Alien of Exceptional Ability in the sciences, arts, or business, you must be able to provide at least three (3) of the following items:
An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought; A license to practice the profession or certification for a particular profession or occupation; Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
Evidence of membership in professional associations; or Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Please remember that one needs only to be able to supply three of these items, not the whole list.

The USCIS defines an advance degree professional as an individual who has achieved a level of education above that of the Bachelor's degree. In order to qualify under this category, the alien must meet the following requirements:
The alien must have a bachelor's degree. The INS will not accept an education evaluation to determine an equivalency to a Bachelor's. In addition to the Bachelor's Degree the INS has determined that five years of progressive experience in the alien's specialty after obtaining the Bachelor's will be considered an equivalent to a Master's degree. So, the alien may have a master's degree equivalent, master's degree or doctorate degree.

The USCIS Standard is a three-part NYSDOT test to determine whether a waiver of the job offer is in the national interest. From INS Administrative Appeals Office (AAO, 1998) decision, In re New York State Department of Transportation ("NYSDOT"), to meet the national interest threshold a petitioner must establish:

  1. The field of intended employment is of substantial intrinsic merit. NYSDOT does not provide guidance on how to determine whether an area of employment is of substantial intrinsic merit. However, a previous AAO decision found that the alien's field of endeavor must have a "prospective national benefit." The alien's work to be granted the NIW must meet one or more of the following:
    The alien's admission will improve the U.S. economy;
    The alien's admission will improve wages and working conditions of U.S. workers;
    The alien's admission will improve educational and training programs for U.S. children and under-qualified workers;
    The alien's admission will improve health care;
    The alien's admission will provide more affordable housing for young, aged, or poor U.S. residents;
    The alien's admission will improve the U.S. environment and lead to more productive use of the national resources; or
    The alien's admission is requested by an interested U.S. government agency.
    The alien need not meet all these requirements, but only one of them in order to qualify.
  2. The proposed benefit will be national in scope; the proposed benefit to the U.S. of the alien's employment will be national in scope; and
  3. Labor certification would be adverse to the national interest. It would be contrary to the national interest to potentially deprive employer of the services of the alien by making the position available to a U.S. worker. The great weight of the alien's potential impact on and prospective substantial benefit to the U.S. would be harmed were the employer required to undergo the labor certification process:
    a) Alien's prospective benefit must be clearly established by a past record justifying projection of future benefit to the nation; and
    b) Alien's individual impact on the field must have a record of achievement, the significance of which is corroborated by independent documentary evidence. Alien must demonstrate her/his work has resulted in findings of major significance to her/his field that "with some degree of influence on the field as a whole" have been widely implemented" or that the alien is more skilled than others who perform the same or similar type of work, as demonstrated by a "history of valuable contribution" or a "critical role" in ongoing work in the field which has practical significance.

Additional USCIS Rules for Adjudication
The alien must have at least two years experience in the area in which she/he will benefit the U.S. The USCIS looks at this to determine if the alien has a serious commitment to the field of endeavor promoting the national interest.

The National Interest Waiver may not be based solely on the alien's ability to alleviate a local labor shortage.

NYSDOT has restricted the NIW category to only the most exceptionally qualified foreign nationals who can meet the three-prong test cited above.