The National Interest Waiver (NIW) visa is a special type of second-preference employment-based (EB-2) visa that comes with the same benefits as the EB-1A visa. The “waiver” refers to the waiver of the requirements of a job offer and labor certification; in other words, no job offer is required, just like the EB-1A visa. The rationale is that the benefit to the United States outweighs the national interest in labor certification. To justify this benefit, USCIS requires a 3-pronged legal analysis explained below.
To be eligible for the NIW visa, the job or occupation you file under must require an “advanced degree” (i.e., master’s degree, Ph.D., medical degree, or law degree) and you must have an advanced degree before your priority date (i.e. the date you file your petition).
Petitioners who do not have an advanced degree can still be eligible if they have the equivalent of an advanced degree: a bachelor’s degree plus 5 years of “progressive experience” in your field before your priority date. “Progressive experience” is demonstrated by promotions, increased pay, and increased responsibilities. Petitioners who cannot demonstrate 5 years of progressive experience can instead try to show “exceptional ability” in the sciences, arts, or business with other evidence.
Once you have established eligibility, USCIS will analyze your petition based on the following 3 criteria established in the USCIS precedent decision Matter of Dhanasar:
1. Does your proposed endeavor have both substantial merit and national importance? This criterion investigates your field of work or area of expertise, without considering your individual achievements. For example, cancer research has substantial merit because it expands knowledge in the sciences and health; and it has national importance because it can potentially save lives.
2. Are you well positioned to advance the proposed endeavor? This criterion investigates the petitioner’s individual achievements and relationships to other experts in the field. To continue with our example of cancer research, a researcher who has published many articles or participated in research at American institutions is well-positioned.
3. Would it benefit the United States to waive the requirements of a job offer and labor certification in your case? This prong applies the petitioner’s evidence in the second prong to the United State’s needs identified in the first prong.
The NIW petition begins with filing the Form I-140, Petition for Alien Worker, and ETA 750B. If your I-140 petition is approved, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States on derivative visas.
Owing to the complex legal analysis required under the Dhanasar framework, having an experienced immigration attorney is crucial to having your NIW petition approved. Use the form below to contact us about filing your NIW petition: