National interest waivers can help people seeking immigrant visas to the United States if they possess an exceptional ability or a unique skill set that can help fortify the United States workforce or promote the United States’ status as a leader in innovation. If you’re a professional with an advanced degree who is seeking permanent resident status in the United States, here’s how a National Interest Waiver can help.

What Is an Immigrant Visa?

Most United States visas are nonimmigrant visas, which means they’re intended for visits of a predetermined duration. Visitor visas only allow for short visits for tourism or business. Student visas are valid for much longer, but will eventually expire without eligibility for renewal.

An immigrant visa is a visa that provides someone with lawful permanent residence (i.e. a green card). Most immigrant visas come with a set of conditions that need to be met that will permit visa beneficiaries to file for adjustment of status or consular processing, ultimately obtaining a green card and becoming a permanent resident of the United States.

Several immigrant visas are available to professionals who hold an advanced degree and individuals who possess exceptional ability in their fields. Most of these opportunities require an applicant to have a pending job offer in the United States. Some allow the most skilled professionals to self-petition with a proposed endeavor (like a solo business opportunity) in the United States. 

What Is the Difference Between EB-1 and EB-2 Visas?

The EB-1 visa and the EB-2 visa are both employment-based immigrant visas for people who excel in their fields. The majority of applicants are likely to fall into the EB-2 visa category, as the rules and guidelines are extremely specific for EB-1 eligibility.

The EB-1 Visa

The criteria for an EB-1 visa are much more in-depth. This visa is reserved for applicants who are outstanding professors and researchers, people of extraordinary ability, and people who act as managers or executives for certain types of multinational businesses.

EB-1 visa applicants are allowed to self-petition based on their own professional merits. This is a very difficult visa to obtain, and it’s generally only used for world-renowned professionals or groundbreaking innovators who meet the highly specific education and accomplishment criteria.

The EB-2 Visa

Most professionals seeking an immigrant visa will qualify for the EB-2 visa. EB-2 applicants under the advanced degree category are only required to hold a bachelor’s degree or its foreign equivalent if they have 5 years of post-baccalaureate, progressive work experience in their field. Applicants with master’s degrees or higher also fall under the educational criteria requirements for the EB-2 visa. 

EB-2 also allows people to apply based on exceptional ability, even if they don’t meet the educational criteria. 

Applicants must meet at least three specific criteria for labor certification as an EB-2 with exceptional ability:

• Official educational record from a formal institution showing academic certification or proof of a degree, even if the certification or degree is less than a bachelor’s degree.
• Reference letters from employers that verify employment in your field for a minimum of 10 years.
• A trade license or certification relevant to your field.
• Evidence that you’re paid for your work as a professional (e.g., indication that your skills have been profitable).
• Proof of membership to guilds, boards, committees, or professional associations in your field.
• Awards, accolades, official recognition, or formal commendations for your work from reputable agencies, sources, or employers.

You will also need to have an Application for Permanent Employment Certification certified by the Department of Labor (DOL) before your file your immigrant visa petition unless you qualify for a national interest waiver. The U.S. employer who provides a job offer to an EB-2 category visa applicant must prove that they are able to pay the visa recipient the prevailing wage as of the priority date for  up until the application for an adjustment of status is approved or the immigrant visa is issued.

What Is a National Interest Waiver?

The National Interest Waiver (NIW) allows EB-2 visa applicants to circumvent the labor certification process by removing the requirement of a job offer for second-preference applicants. An EB-2 NIW is used to demonstrate that labor certification requirements aren’t necessary because the potential of an EB-2 applicant is comparable to the potential of an EB-1 recipient.

Matter of Dhanasar allows eligible applicants to obtain a National Interest Waiver if their proposed endeavor (i.e., business opportunity, offer of assistance, clinical research, etc) meets two criteria. Their work must be of substantial merit, and it also must be of national importance. 

U.S. Citizenship and Immigration Services highly scrutinizes applicants requesting the waiver. NIW requirements can be tough to prove to USCIS. They need to believe that you’re capable of fulfilling the proposed endeavor and that you would be able to begin work on your endeavor as soon as you arrive in the United States. Experienced entrepreneurs or similar businesspeople who have a history of successful endeavors may qualify.

They need to know for sure that giving you the waiver would be in the best interest of the United States. Essentially, you’re telling them that your idea is too good to pass up and that the United States would be missing out if you didn’t bring your idea, research, or endeavors to the country.

Why Are National Interest Waivers Important?

The EB-1 visa provides the freedom to immigrate to the United States without any immediate job prospects because it automatically assumes that they have the means to be self-sufficient. People with EB-2 visas can be just as capable, even if they don’t meet the educational requirements.

A National Interest Waiver gives certain EB-2 applicants the opportunity to state their case as to why the requirements shouldn’t necessarily apply to them. If your endeavor is compelling enough and would provide value to the United States, the skills and ideas you bring to the table can significantly outweigh the mere presence of specific credentials. 

What Is the Matter of Dhanasar?

The Matter of Dhanasar is a decision regarding eligibility for a national interest waiver. It provides a three-prong approach regarding eligibility for a national interest waiver. It’s an umbrella that covers the three primary criteria that a visa applicant must meet to be eligible for the waiver.

Substantial Merit and National Importance

The “substantial merit and national importance” part refers to what you’re proposing to do when you arrive in the United States. 

NIW applicants must have, essentially, an important job to do. If you’re a NIW applicant and you intend to purchase and operate the franchise of a fast-food restaurant, that wouldn’t be considered an endeavor of substantial merit and national importance. The United States already has an adequate amount of fast-food restaurants and wouldn’t benefit from another one. 

USCIS primarily considers endeavors in the fields of health care, science, technology, engineering, and education to be of substantial merit, but they’re willing to consider other endeavors that would provide a similar benefit. 

National importance refers to the scale of your endeavor. If you are an earth scientist who wants to privately study the migration habits of an endangered bird species, your work would have substantial merit. However, it wouldn’t necessarily have national importance because it wouldn’t directly impact the United States ecosystem. 

If your proposed endeavor was to study the migration habits of endangered birds and find actionable ways to preserve their lives and save their species, your work would be of national importance.

The Ability To Advance Your Proposed Endeavor

The “ability to advance your proposed endeavor” is a simple concept. Are you actually capable of doing what you say you’d like to do? If your ambition seems unfeasible, if your timeline would take decades, or if your endeavor would be extraordinarily expensive, USCIS will doubt your ability to advance your proposed endeavor. Ideally, you’d be ready to start your endeavor as soon as you’ve relocated to the United States and settled into your new home.

It’s Beneficial To Waive the Job Offer Requirement

Proving the first two points usually helps USCIS to arrive at the third point: it’s a beneficial decision to waive the job offer requirement.

The job offer requirement is designed to protect qualified U.S. workers and the U.S. economy. When U.S. employers want to hire someone from outside of the country, they need to prove that there is a lack of U.S. workers suited to the position. 

There is no job offer requirement for EB-1A visas — the applicant doesn’t have to go through PERM to test the labor market for other EB-1 visas, but they do still need a job offer. There are more U.S. workers with qualifications that match EB-2 visa requirements, which is why the job offer is necessary.

If you are able to provide something like a skillset or an endeavor unique to your qualifications, the United States may consider it to be beneficial to waive the job offer requirement and allow you to relocate as soon as possible. 

Can EB-2 NIW Visa Recipients Bring Their Families?

EB-2 NIW are allowed to petition for their spouses and unmarried children under the age of 21. If they are admissible into the United States, they will be granted EB-21 and EB-22 visa status and will be eligible for permanent residence. They will be allowed to live with you in the United States.

How Long Does It Take To Get an EB-2 NIW Visa?

Processing time can vary significantly and can be affected by many factors. Each country can only make up 7% total of the allotment of available visas for each category. If applications significantly exceed the allotment, processing backlogs can last for months or even years.

It’s best to check the visa bulletin for EB-2 visa availability. Check the category for your country to see if the United States has filled all available visas for your country’s allotment. If there are available visas, you will see that the priority date for visa availability is recent.

You may be able to speed up the process by using premium processing. Premium processing is a fee you pay on top of the standard filing fee to have your NIW application floated to the front of the queue for review. However, premium processing does not bypass the wait for a visa. 

What If You Don’t Qualify for a National Interest Waiver?

If you aren’t eligible for a national interest waiver, you can still apply for the EB-2 visa. You’ll just need a job offer instead of a national interest waiver. If you have a highly desirable skillset in an advanced professional field, it may not be difficult to find a leading firm or company in the United States willing to help you immigrate. There’s always a market for top talent, and many U.S. businesses are eager to hire the best and brightest minds in the world.

Getting Legal Assistance With Your National Interest Waiver

If you believe that you would qualify for a National Interest Waiver, it’s best to hire an immigration attorney to assist you with the process. It can be very difficult to prove all three necessary points and successfully obtain a national interest waiver. An experienced immigration lawyer will be able to tell you if you’re a good candidate for a national interest waiver, walk you through the application process, and help you review your options for an employment-based visa. 

Contact the legal team at Cohen, Tucker + Ades for a consultation on your case. After a consultation, we’ll be able to help you determine the best way forward for your work-related immigrant visa case.

Sources:

How to apply for or renew a U.S. tourist visa | USAGov

Chapter 5 – Advanced Degree or Exceptional Ability | USCIS

Matter of DHANASA, 26 I&N Dec. 884 (AAO 2016) | US Department of Justice

How Do I Request Premium Processing? | USCIS