Q: What is an EB-2 national interest waiver (NIW)?
A: An alien may apply for permanent residence and seek a waiver of the Labor Certification by establishing that his or her permanent residence would be in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national interest.
Q: What are the minimum requirements to apply for a NIW?
A: The beneficiary of an NIW must qualify as either an “advanced degree professional” or an “alien of exceptional ability.” Those seeking a national interest waiver do not need an employer to sponsor them and may self-petition and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.
Q: What is an advanced degree professional?
A: The term “advanced degree professional” means that the beneficiary either has an advanced degree (i.e., more advanced than a bachelor’s degree) or its foreign equivalent, or is working in an area that requires at least a Bachelor’s degree or is traditionally regarded as a profession, such as a lawyer, doctor or engineer. A Bachelor’s degree plus five years’ experience in a professional or progressive occupation may also satisfy the qualification requirement of an “advanced degree.” An alien holding an advanced degree from a U.S. university or foreign equivalent need not prove he or she qualifies as an alien of extraordinary ability.
Q: Does the receipt of a certain degree or certificate constitute “exceptional ability”?
A: No. The USCIS has stated that possession of a degree, diploma, certificate, or similar award from a college, university, school, or other institution may not be considered sufficient by itself to evidence exceptional ability. Likewise, a license or certificate to practice a profession or occupation is not sufficient either.
Q: What is an alien of exceptional ability?
A: An alien of extraordinarily ability is an alien who demonstrates exceptional ability in the sciences, arts, or business, through at least three of the following:
- 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; and/or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Q: What types of supporting documents are required?
A: Documents for an NIW petition consist of the USCIS form I-140 and the Department of Labor form ETA-750B. Additionally, documents supporting that the beneficiary is an advanced degree professional or an exceptional ability alien should be provided. There are no other required specific documents although letters of recommendation from prominent members of your field are considered and may be helpful.
Q: What is the NIW standard of review?
A: “Advanced degree professionals” or “aliens of exceptional ability,” whose work would substantially benefit the national interests of the United States would be exempted from the labor certification requirement. However, “national interest” is undefined. The relevant statute, 8 U.S.C. § 1153(b)(i), states:
The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien’s services in the sciences, arts, professions, or business be sought by an employer in the United States.
Q: How does USCIS determine its decisions regarding NIW cases?
A: USCIS may grant a national interest waiver if the petitioner demonstrates:
- That the foreign national’s proposed endeavor has both substantial merit and national importance;
- That he or she is well positioned to advance the proposed endeavor; and
- That, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)
The Labor Certification process exists to protect the jobs and job opportunities of U.S. workers having the same minimum qualifications as an alien seeking employment in the national interest. The petitioner must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Q: How do you establish prospective national benefit?
A: While the national interest waiver hinges on prospective national benefits, the alien’s past record should justify and clearly establish likelihood of projected national future benefits.