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EB-2 National Interest Waiver

Law Offices of Yu & Associates


What Is the National Interest Waiver Immigration Subcategory?

The National Interest Waiver (NIW) petition is a subcategory of EB-2, which is an employment-based petition for permanent residency for "members of the professions holding advanced degrees" and individuals "who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States." An NIW petition does not require Labor Certification or a job offer, but the applicant must show that he or she is seeking work in an area of substantial intrinsic merit to the US, that the benefit from the candidate's proposed activity will be national in scope, and that the national interest would be adversely affected if a Labor Certification were required for the applicant.

What Are the Advantages of Applying for a Green Card under the NIW Category?

The NIW petition process holds substantial advantages for the qualified applicant. Normally an EB-2 petition requires Labor Certification and a job offer. The biggest advantage of the EB-2 NIW petition is that these requirements are waived. That means that you do not need an employer or job offer to file an NIW Application. The EB-2 NIW petition requests that the requirements of a job offer and Labor Certification be waived in favor of the "national interest."

Since an NIW petition does not require Labor Certification or a job offer, it is often quicker than other EB-2 petitions and gives the applicant more flexibility. However, it can be difficult to prove that an applicant qualifies for NIW.

What Are the Basic Requirements for an EB-2 NIW Petition?

The basic requirements for the employment based second preference visa category (EB-2) of which NIW is a subcategory are that the beneficiary must qualify as either an "Advanced Degree Professional" or an "Alien of Exceptional Ability."

What Is an "Advanced Degree Professional"?

An Advanced Degree Professional must hold an advanced degree such as a Ph.D. or Masters, or must hold a baccalaureate degree and have five years experience in his or her specialty.

What Is An "Alien of Exceptional Ability"?

An Alien of Exceptional Ability must meet at least three of the following requirements, or submit comparable evidence to demonstrate his or her exceptional ability in the sciences, arts, or business:

  1. An official academic record showing 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;
  2. Letters documenting at least ten years of full-time experience in the occupation being sought;
  3. A license to practice the profession or certification for a particular profession or occupation;
  4. Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;
  5. Membership in professional associations;
  6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

What Special Requirements Are There for the NIW Subcategory?

An applicant for NIW must also be able to demonstrate that he or she meets the following three tests:

  1. He or she is seeking work in an area of substantial intrinsic merit to the U.S. The applicantí»s work should benefit U.S. healthcare, economy, security or some other important aspect.
  2. The benefit from the candidate's proposed activity will be national in scope. It will benefit the entire U.S. population, and not just a particular area.
  3. The national interest would be adversely affected if a Labor Certification were required for the applicant. There would be negative consequences if the applicantí»s work were interrupted due to the lengthy Labor Certification process; or the applicant possesses exceptional qualifications which would not be reflected in the certification process and which U.S. workers minimally qualified for the same job would lack.

These factors should be shown through letters of recommendation from independent experts in the applicantí»s field.

What Are Some Factors that can Affect Qualification for the NIW Category?

To achieve a successful NIW case, the alien applicant should demonstrate one or more of the following:

  1. The aliení»s admission will improve the U.S. economy.
  2. The alien's admission will improve the wages and working conditions of U.S. workers.
  3. The aliení»s admission will improve educational and training programs for U.S. children and underqualified workers.
  4. The aliení»s admission will provide more affordable housing for young, aged, or poor U.S. residents.
  5. The aliení»s admission will improve the U.S. environment and lead to more productive use of its national resources.
  6. The aliení»s admission is requested by an interested U.S. government agency.

What Documentation Should I Prepare for an NIW Case?

The applicant must submit evidence of an advanced degree and evidence to support Exceptional Ability, such as publications, national or international recognized awards, membership in professional organizations, recommendation letters etc. The applicant should collect a number of strong recommendation letters from well-known independent experts from influential institutions or organizations to show that he or she meets the requirements for the National Interest Waiver.

 

The above is intended as a general introduction and should not be construed as legal advice or legal opinion for your particular case. Please contact the Law Offices of Yu & Associates with any specific questions. Tel: (301) 838-8986, Email: syu@yulegal.com, Address: 110 N Washington St., Suite 328E, Rockville, MD 20850.



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