EB-2 National Interest Waiver


SCHEDULE A CONSULTATION

This immigrant visa or permanent resident “green card” category allows for a self-petitioner or an employer to file a USCIS Form I-140 immigrant petition to sponsor an international professional through a substantial amount of evidence establishing the following two (2) elements:

  1. Employment-Based Second Preference (EB-2) requires a relevant advanced (i.e. graduate) degree, a relevant bachelor’s degree plus 5 years of progressive work experience, or “exceptional ability”
  2. National Interest Waiver (NIW) requirements

EB-2 Requirements

Although an advanced degree, such as a Master’s degree or a PhD, would be the most common way to establish qualification towards this first legal element, proof of “exceptional ability” in lieu of this educational requirement, a qualified self-petitioner or employer can establish that the beneficiary has “a degree” of expertise significantly above that ordinarily encountered in the sciences, art, or business,” through establishing three (3) of the following criteria for exceptional ability:

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters from current or former employers documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

National Interest Waiver Requirements

A National Interest Waiver means that the U.S. immigration authorities will waive the default general requirement that an employer test the labor market through a PERM Labor Certification before sponsorship for permanent residency. A substantial amount of evidentiary documentation (i.e. often hundreds if not thousands of pages), including expert recommendation letters from prominent members in the field, and strong legal arguments based upon caselaw would be submitted to establish that the beneficiary meets the following bullet points:

  • The noncitizen’s proposed endeavor has both substantial merit and national importance.
  • The noncitizen is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The current framework for review of National Interest Waiver qualification was established by Matter of Dhanasar.

Application for Permanent Residency Based Upon EB-2 I-140 National Interest Waiver

On the basis of an approved EB-2 I-140 Immigrant Petition based on National Interest Waiver and subject to any backlogs imposed by annual limitations noted in the Visa Bulletin, the international professional can apply for permanent residency through consular immigrant visa processing or as an adjustment of status from within the U.S. if they are maintaining a nonimmigrant status.

Merit-based immigration cases are among the most complex area within U.S. immigration law with a higher chance of scrutiny and denial, so it’s important to work with an experienced business immigration attorney.

The above is informational and not intended to be legal advice. Please consult with an experienced business immigration attorney on your specific facts and circumstances before proceeding with any U.S. immigration strategy.