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Oct1

National Interest Waiver Overview

Employment-Based Permanent Residence through National Interest Waiver Petition (EB-2)

While employment-based, second-preference immigrant petitions must generally be accompanied by a job offer from a U.S. employer and an approved Labor Certification (LC) from the Department of Labor, a foreign national may be eligible for an EB-2 immigrant visa without having to meet the time-consuming LC requirement if it is in the interest of the United States to waive said requirement. When deciding whether to grant a waiver of the LC requirement, USCIS looks at all of the evidence to see whether the national benefits that the foreign national offers are so great that they outweigh the national interests inherent in the LC process. Another benefit of the National Interest Waiver petition is that the foreign national can submit it as a self-petition and does not require a U.S. employer to sponsor the petition. Jobs that qualify for a National Interest Waiver are not defined by statute, but these waivers are usually granted to individuals who have exceptional ability and whose employment in the United States would greatly benefit the nation.

Primary Requirements and Considerations for the National Interest Waiver

  • Foreign nationals seeking a National Interest Waiver may self-petition, without needing a U.S. employer as a sponsor, and may file the labor certification form directly with USCIS, along with the immigrant petition and supporting documents. Alternatively, a National Interest Waiver petition may be submitted by the foreign national’s U.S. employer.
  • Like all EB-2 beneficiaries, a person seeking a National Interest Waiver exemption must first qualify as either an advanced degree professional or an alien of exceptional ability. However, satisfaction of this threshold determination alone does not itself qualify a foreign national for LC exemption, not does performance of services directed toward a generalized area of national interest significance, like medicine or education. Having exceptional ability is not by itself sufficient to grant the National Interest Waiver.
  • The foreign national must show through substantial documentation that he or she plans to work in the United States in an area of substantial intrinsic merit. The importance of the proposed work can be shown by submitting, among other documents, (a) a letter from the foreign national and/or his or her company describing the work and its importance; (b) articles or other published media discussing the foreign national’s work and/or his or her company’s work and its importance; and (c) letters from experts in the field attesting to the foreign national’s work and its importance. Testimonial letters from experts should include information about the expert’s own credentials, such as a C.V.
  • The foreign national must show that the proposed impact of his or her work is national in scope. While the employment may be limited to a particular geographic area, the foreign national must establish a benefit to more than a particular region of the country. He or she must demonstrate that the proposed benefit to be provided will be national in scope. USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field. To demonstrate that the proposed impact of the work is national in scope, documents must be submitted, including the following: (a) published articles or media reports; (b) copies of contracts, agreements, or licenses showing the scope and impact; (c) letters from current and former employers discussing the work and its national importance; and (d) letters from experts in the field attesting to foreign national’s work and its national importance.
  • The foreign national must show that waiving the Labor Certification requirement would benefit the national interest of the United States. The evidence must demonstrate that the foreign national serves the national interest to a substantially greater extent than the majority of his or her colleagues and that the foreign national has a degree of influence on his or her field that distinguishes him or her from colleagues. The national interest evaluation is prospective, meaning that the foreign national must show that he or she has a past record of specific prior achievements that indicate future benefits to the national interests of the United States. Demonstrating that the foreign national’s business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for a National Interest Waiver, but the foreign national still has to show that the creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field. Some supporting evidence includes (a ) copies of published articles that cite or otherwise recognize the foreign national’s achievements; (b) copies of grants or other funding received listing the amount and terms of the grants, as well as the principal and co-investigators; (c) documents showing how the foreign national’s work is being implemented by others, for example: (i) contracts with companies using the foreign national’s products; (ii) documents showing licensed technology that the foreign national invented or co-invented, and how that licensed technology is being used by others; or (iii) patents or licenses awarded to the foreign national with documents showing how they are being used and why they are significant to the field.NIW self-petitioners must provide and meet at least 3 of the following criteria: (1) 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 his or her area of exceptional ability; (2) Letters documenting at least 10 years of full-time experience in the occupation; (3) A license to practice the profession or certification for the profession or occupation; (4) Evidence that the foreign national has commanded a salary or other remuneration for services that demonstrates his or her exceptional ability; (5) Membership in a professional association(s); (6) Recognition for achievements and significant contributions to the industry or field by the foreign national’s peers, government entities, professional or business organizations; or (7) other comparable evidence of eligibility.
  • Some helpful considerations may be whether the foreign national’s work will improve the U.S. economy; working conditions and wages of U.S. workers; education and training programs for U.S. children and under-qualified workers; U.S. health care; the environment of the United States; or international cultural understanding; or whether the foreign national’s work will make more productive use of natural resources or provide more affordable housing for certain U.S. residents. Also helpful is a written request from an interested U.S. government agency.

Change of Employer

If the National Interest Waiver petition was based on the foreign national’s work with a particular employer, a petition filed by that employer would no longer be valid if that employer was out of business or no longer wished to hire the foreign national. However, if the waiver was based on the foreign national’s contribution to an industry which could be utilized by another employer, it remains valid. It may be beneficial for the foreign national to file a self-petition that is not based on employment with a specific U.S. employer, although an employment offer may, at times, be helpful in strengthening the petition.

Application Procedure

An employment-based petition in the EB-2 category must be accompanied by, among other documents, a Form I-140 Petition for Immigrant Worker and an applicant-completed LC Form ETA 9089 (without DOL certification.) As long as the priority date is current, the immigrant petition and adjustment of status (“green card”) application can be filed concurrently. If the foreign national is present in the United States, the immigrant petition must be approved before the foreign national’s adjustment of status is granted. If the foreign national is not present in the United States and filing from abroad, USCIS will forward the approved immigrant petition to the National Visa Center, and the foreign national will obtain an immigrant visa to permanently enter the United States through consular processing.

Family of EB-2 Immigrant Visa Holders

The spouse and children under the age of 21 of EB-2 immigrant visa holders may be admitted to the United States in E-21 and E-22 immigrant status, respectively. When applying for adjustment of status (to become a “green card” holder), the spouse is eligible to file for an Employment Authorization Document (EAD) and allowed to work in the United States upon its approval.

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