What is the National Interest Waiver?

The National Interest Waiver (NIW) is an option for obtaining lawful permanent residence through employment under the EB-2 visa category. As a general rule, most employment-based petitions under the second preference category require an employer sponsor with a concrete job offer, specific duties, and salary requirements. Employers typically must navigate the complex Labor Certification process (PERM). However, an applicant can waive the entire PERM procedure and job offer if their work is deemed to be in the “national interest” of the United States. 

What are the Primary Differences with Other EB-2 Employment Categories?

For other EB-2 categories, a foreign national will need an employer sponsor who will have to complete the PERM process of placing job advertisements to ascertain whether there are sufficient U.S. workers that are qualified and willing to accept the job opportunity in the intended area of employment. The employer will then file a Form I-140 to demonstrate that the foreign national qualifications prove extraordinary ability or possession of an advanced degree. 

For an NIW application, the foreign national does not require an employer and can self-petition. The foreign national will need to demonstrate that they hold an advanced degree or have an “exceptional ability”. In addition, they will also meet the legal requirements for a National Interest Waiver. This three prong framework includes:

1. The foreign national’s proposed endeavor has both substantial merit and national importance;
2. The foreign national is well-positioned to advance the proposed endeavor; and
3. The foreign national demonstrates it would benefit the United States to waive the job offer and labor certification requirements.

How Does a Foreign National Demonstrate that their Work is in the National Interest?

A foreign national applicant must demonstrate their proposed work will contribute to the interests and priorities of the United States as a whole. They will need to show how their endeavor will assist the security, prosperity, well being, and general advancement of the United States. Examples of what constitutes furthering the national interest include:

• An applicant’s approval will advance U.S. national security and defense;
• An applicant’s approval will improve U.S. public health, environment, fight climate change, or encourage sustainability; and 
• An applicant will further U.S. economic growth and competitiveness.

Any Benefits for STEM Graduates and Entrepreneurs?

The Biden Administration on January 22, 2022 announced guidelines for applicants with advanced degrees in science, technology, engineering, and mathematics (STEM). The government’s updated guidance states that all STEM graduates can be eligible for a NIW depending on their experience and level of degree. The government’s policy recognizes “the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.” Volume 6, Part F, Chapter 5 of the Policy Manual. Foreign nationals with advanced STEM degrees, particularly Ph.D, will be viewed especially favorably in assessing the applicant’s qualifications and proposed endeavor. 

Do you Need Assistance with a National Interest Waiver Petition?

There are a lot of considerations to make in deciding whether a National Interest Waiver petition is the best option for you. If you need assistance throughout the process, the experienced law team at Cohen, Tucker + Ades can help. 

Sources:

USCIS Policy Manual, Volume 6, Part F, Chapter 5