| 1. | What is a National Interest Waiver? |
| A National Interest Waiver (NIW) is a request to waive the typical requirements of a permanent job offer and a Labor Certification (test of the U.S. job market) as part of an Employment-based Second Preference Immigrant Petition. It allows a foreign national to self-petition rather than requiring the sponsorship of an employer.
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| 2. | Who qualifies for a National Interest Waiver? |
| A successful National Interest Waiver demonstrates that the foreign national meets each part of a three-part test:
• Work must be of substantial intrinsic merit;
• Benefits of that work must be national in scope and not merely local; and,
• The foreign national’s record of past achievements shows that he or she would benefit the national interest to a substantially greater degree than would an available U.S. worker holding the same minimum qualifications.
Although the National Interest Waiver focuses on the prospective national benefit, the past record of accomplishments is the basis for the likelihood of future benefits. These requirements generally receive a high level of scrutiny. Foreign nationals who have completed their Ph.D. typically request these waivers; however, the wavier is also open to other researchers, business professionals, artists, and others who have an advanced degree or exceptional ability in their field.
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| 3. | Who qualifies for the Employment-based Second Preference Category? |
| First, the category includes those individuals who hold, and whose profession requires, an advanced degree (Master’s degree or above), or its equivalent, from a U.S. university or foreign equivalent. A Bachelor's degree followed by five years of progressive experience is considered the equivalent of a Master’s degree.
Second, the category includes those individuals of exceptional ability. To be considered an individual of exceptional ability, one must demonstrate exceptional ability in the sciences, arts, or business, by meeting at least three of the following criteria:
1. 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;
2. 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;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
5. Evidence of membership in professional associations; or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
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| 4. | How do I apply for a National Interest Waiver? |
| A National Interest Waiver is filed along with Form I-140 Petition for an Alien Worker. Generally, the National Interest Wavier and I-140 are filed by an individual living in the U.S.; however, the Waiver and I-140 can be filed from outside the U.S., although the criteria may then be more difficult to establish. If the individual is living in the U.S., he or she may be qualified to concurrently file for Adjustment of Status, based on Immigrant Visa availability.
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| 5. | Can I file more than one I-140 in different preference categories? |
| Yes, an individual may petition under more than one Employment-based preference category. For example, an individual can apply as an EB-1 Extraordinary Ability Alien in addition to an EB-2 National Interest Waiver, if both criteria are met, to increase his or her chances of approval.
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| 6. | What is my priority date if my I-140 is based on a National Interest Waiver? |
| The priority date is the “receipt date”, or the date that the USCIS receives the I-140 Immigrant Petition.
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| 7. | What happens if I change positions while my application is pending or after it is approved? |
| An I-140 filed along with a National Interest Waiver is not employer-sponsor, thus changing jobs will not automatically harm a petition; however, one must remain working in the field described in the National Interest Waiver such that the benefit to the national interest remains.
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| 8. | What are the some of the pros and cons of filing a National Interest Waiver? |
| The benefit of a National Interest Waiver filing is that it does not require a Labor Certification or a permanent job offer in the United States. This generally allows for a faster path to Permanent Residence than through an Immigrant Petition based on a Labor Certification. Also, the ability to self-petition allows an individual to sponsor him or herself, rather than depending on the sponsorship of an employer. The drawback of a National Interest Wavier filing is that the criteria and standards of review are very high, thus the outcome is much less predictable than that of a Labor Certification-based Immigrant Petition.
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