A National Interest Waiver (NIW) may be filed by persons classified as employment-based second preference. The beneficiary of a NIW is exempt from the requirement that his or her employer first obtain a labor certification (commonly known as PERM) from the Department of Labor. Moreover, a job offer is not required, thereby allowing the intending immigrant to self-petition.

Since the beneficiary of a NIW must fall into the EB-2 category, he or she must qualify as either an “advanced degree professional” or as an “alien of exceptional ability.” We have defined advanced degree professional above. To show that the intending immigrant is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following:

  • An official academic record showing that the foreign national 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; or
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

If the above standards are not immediately applicable to the beneficiary’s occupation, comparable evidence may be submitted to establish eligibility.

To qualify for the NIW, the individual’s work must benefit the national interest of the U.S. The term national interest has been left undefined, but the Administrative Appeals Unit of the USCIS has suggested that one or more of the following factors be taken into consideration:

  • Improving the U.S. economy;
  • Improving wages and working conditions of U.S. workers;
  • Improving education and training programs for U.S. workers;
  • Improving health care in the U.S.;
  • Providing more affordable housing in the U.S.;
  • Improving the environment; or
  • A request from an interested U.S. Government Agency.

Supporting evidence includes a one-time achievement (i.e., a major, internationally-recognized award), or at least three of the following:

  • Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor; or
  • Membership in associations in the field which require outstanding achievements as judged by recognized national or international experts, published material about the foreign national in professional or major trade publications or other major media; or
  • Participation on a panel or individually as a judge of the work of others in the field or an allied field, or
  • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field; or
  • Authorship of scholarly articles in the field, in professional or major trade publications or other major media; or
  • Display of the foreign national’s work at artistic exhibitions or showcases; or
  • Evidence that the foreign national has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; or
  • Evidence that the foreign national has commanded a high salary or other high remuneration for services; or
  • Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

Comparable evidence to establish eligibility may be submitted if the above criteria are not applicable to the applicant’s occupation. Please contact our firm to discuss eligibility or for any employment or family-based immigration matter.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]

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