The National Interest Waiver (NIW) allows certain Employment-Based applicants to forego much of the hurdles in other Employment-based applications, mainly the labor certification. Like the labor certification, the NIW was established in the interests of the United States. This waiver, however, allows advanced degree professionals or those with exceptional abilities to contribute to the development of the nation.
The Department of Homeland Security (DHS) established the NIW program to facilitate a mutually beneficial situation that would accommodate the interests of the United States and the applicant. Therefore, applicants with exceptional ability and talents who will be working in/towards fields of intrinsic merit should consider applying for an NIW if they fall under the EB-2 category. The first step in determining eligibility is to qualify as an alien of exceptional ability or a professional with an advanced degree.
The United States Citizenship and Immigration Services (USCIS) have not defined “national interest” for purposes of the NIW. Therefore, USCIS determines if the application meets national interest using a three-pronged test.
1. The applicant should be seeking employment in an area of substantial intrinsic merit;
2. The benefit of the employment/work should be national in scope; and
3. Waiving the labor certification requirement would benefit the national interest.
This three-pronged test assumes that the applicant has already qualified for an EB-2 Category as having an exceptional ability or an advanced degree. This also means that merely having an exceptional ability alone will not qualify an applicant for an NIW. The burden of proof is to establish that the exceptional ability or work to be performed will outweigh the need to undergo the labor certification process.
Before applying the three-pronged test, there are some factors that should be taken into consideration. These factors help determine eligibility for an NIW and were suggested by the Administrative Appeals Unit:
1. Improving the condition of healthcare in some way, shape or form;
Improving education/educational system for children or training for underqualified workers;
3. Improving the economy;
4. Improving wages and working conditions for workers;
5. Providing access to more affordable housing;
6. Improving the natural environment or applying more effective/efficient use of natural resources; and
7. Interested government agency request.
How Our Immigration Lawyers Can Help?
It should be noted that although these requirements are seemingly easily met based on the case law, attention to detail and the ultimate issues of qualifying for the NIW should be be assumed simply because the USCIS has allowed a certain profession to qualify for NIW easily in the past.
One of our NIW greencard lawyers can assist clients in determining whether they are eligible based on the criteria listed above. We can also help you find evidence that could be used to prove you exceptional ability and your endeavor’s positive impact on the U.S. economy.
Our experience attorneys have significant experience with complex employment immigration cases and are prepared to assist you with any complexities that may arise with your NIW case. If you would like to speak with one of our experts, feel free to schedule a free comprehensive consultation.