If they can demonstrate US National Interest, members of the professions holding an advanced degree or its equivalent, or those with Exceptional Ability in the Sciences, Arts or Business may be eligible for a waiver of the PERM labor certification requirement and/or a waiver of a job offer, and may apply in the National Interest Waiver (NIW) green card category.

National Interest Waiver (NIW) green card candidates must show that, if granted permanent US residence, they will “substantially and prospectively” benefit the national economy, cultural or educational interest or welfare of the US. It is not enough to demonstrate that skills that are in shortage in the US or generally, or that a candidate’s skills are in high demand  (shortage would be a case for PERM Labor Certification rather than National Interest Waiver (NIW)). In addition, at the final stage of the green card process, the candidate is likely to be asked to show that s/he will continue to work in the field of expertise presented in the petition.

Please click here for a free initial assessment of your options in the National Interest Waiver (NIW) green card category; but before you do, review the information on this page, below.

Since the law surrounding the National Interest Waiver (NIW) green card has undergone major changes over the years and, as a result, is uncertain, we recommend that if possible, qualified clients consider a more predictable category, such as EB1 Extraordinary Ability or EB1 Outstanding Professor Researcher, or PERM Labor Certification (or filing in multiple categories in which one may qualify). This is particularly true for nationals of countries with backlogs in the employment based visa categories, such as India and China, since the National Interest Waiver (NIW) provides only Employment-Based 2nd Priority (or EB-2) classification (as opposed to EB-1 or Employment-Based 1st Priority classification), and EB-2 can mean lengthy delays in receipt of legal permanent residence, even if an National Interest Waiver (NIW) is approved.

Moreover, those interested in National Interest Waiver (NIW) green card should note that unless immigrant visa numbers are available at the time of filing, and adjustment of status and work authorization applications are submitted for the principal applicant and any dependents, they will not obtain legal status to remain and work in the US merely by filing a National Interest Waiver (NIW). Rather, they must maintain status in one of the nonimmigrant visa categories (most frequently the H-1B Visa or O-1 Visa) to remain/work legally in the US.

National Interest Waiver (NIW) Standards

The standard for the National Interest Waiver (NIW) derives from a 1998 decision, New York State Department of Transportation (NYSDOT), which substantially changed the legal standard and raised scrutiny of National Interest Waiver (NIW) green card petitions.  According to NYSDOT, a candidate must meet the following three tests:

1. The National Interest Waiver candidate’s prospective employment must be in an area of “substantial intrinsic merit.” Generally, the Service appears to accept any established field of expertise as being a field of substantial intrinsic merit. However, National Interest Waiver (NIW) eligibility cannot be established solely by showing that the beneficiary’s field of endeavor has intrinsic merit.
2. The proposed benefit must be national in scope, i.e., the candidate’s work should have a national rather than local impact. Those whose work has limited impact, i.e., primarily on their own employer, limited climate base or locality, will therefore have difficulty overcoming this National Interest Waiver (NIW) factor.
3. Finally, a National Interest Waiver (NIW) candidate must demonstrate that “the national interest would be adversely affected if a labor certification were required,” i.e., that it would be contrary to the national interest to potentially deprive the prospective employer of the candidate’s services by making the proposed position available to US workers. By extension, a National Interest Waiver (NIW) candidate who can demonstrate that s/he is at the top of his or her field and/or that his/her work has had a significant impact on that field would presumably meet this criterion.

The above NYSDOT standard is in addition to the prior standard, which suggested that demonstration of one of the following is influential in determining whether a candidate’s work was in the national interest: (1) improving the US economy; (2) improving wages and/or working conditions of US workers; (3) improving education and training programs for US children and/or under-qualified workers; (4) improving health care in the US; (5) creating more affordable housing for low income US residents; (6) improving the environment and/or conserving natural resources; or (7) working on behalf of a US government agency. These still are useful and necessary factors in a Naitonal Interest Waiver (NIW) green card petition, but they are not enough to meet the  standard.

In addition, a letter from an interested government agency regarding the national influence of the candidate’s work is highly persuasive to USCIS in a National Interest Waiver (NIW) green card petition.

Generally, a successful National Interest Waiver (NIW) green card petition will show via testimony or other evidence (significant publication record in peer-reviewed scientific or professional journals; citations of those publications by independent sources; media about the beneficiary and/or his or her work; membership in important organizations that require outstanding achievements for membership; substantial financial or other support by government agencies for the beneficiary’s work; participation as a judge of others based on expertise in the field) that (1) the beneficiary has some degree of influence on his or her field as a whole; (2) the beneficiary has unique knowledge, talent or experience that makes him or her stand out from others similarly situated in the field; and/or (3) s/he plays some unique or critical role in important or ground-breaking projects in his or her area of expertise.

In addition to the above, a successful National Interest Waiver (NIW) green card applicant must have an advanced degree, or must demonstrate “exceptional ability” in the field of endeavor. See below for definitions of these.

Definitions for Purposes of National Interest Waiver (NIW)

Professionals Holding an Advanced Degree EB-2

For US immigration purposes, “advanced degree” is defined as postgraduate study beyond a bachelor’s degree (at a minimum, a master’s degree or its US equivalent). The “equivalent” of a US Masters degree is the foreign equivalent of a Bachelor’s degree, followed by at least 5 years of progressive experience in the specialty. No amount of experience may be substituted for the bachelor’s degree in establishing eligibility in this category. In addition, if beneficiary’s specialty customarily requires a doctoral degree, the candidate should possess such a degree.

Exceptional Ability – EB-2

In US immigration, “exceptional ability” is “a degree of expertise significantly above that ordinarily encountered,” and is denoted by 6 regulatory factors. If an applicant meets at least 3 of these 6 factors, s/he will qualify under this standard: (1) degree; (2) license; (3) ten years of experience; (4) high remuneration compared to others in the field; (5) display of work; (6) publication of work.

Those who have an advanced degree need not satisfy the Exceptional Ability standard.

Please note that we will accept a National Interest Waiver (NIW) green card case only if we feel it has a high chance of success after examining the prospective client’s credentials and subjecting them to an analysis of the regulations and the latest trends in adjudication of this case type.