National Interest Waiver

On January 21, 2022, USCIS issued a new policy which is intended to make the National Interest Waiver more broadly available to foreign nationals with STEM backgrounds who are pursuing endeavors that benefit the United States, including entrepreneurial ventures.

USCIS to Implement Premium Processing for Certain Previously Filed EB-1 and EB-2 Form I-140 Petitions (5-24-22)

 
 
 
A national interest waiver (NIW) is available to a person who can show the following:

1. That their proposed endeavor has both substantial merit and national importance;
2. That he or she is well positioned to advance the proposed endeavor; and
3. That, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.

Normally, if you qualify for the second employment-based (“EB-2”) category (Workers Holding Advanced Degrees and Persons with Exceptional Ability in the Arts, Sciences and Business), your employer must undergo the PERM labor certification process. This requires the employer to advertise the job and demonstrate to the U.S. Department of Labor that no qualified U.S. workers applied for the job.

However, where your endeavor is deemed to be in the national interest, the USCIS may waive the requirements of a job offer and the PERM labor certification.

Client Reviews

Persons seeking an NIW are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, NIWs are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking an NIW may self-petition (they do not need an employer to sponsor them) and may file their Form I-140 directly with the USCIS.

In a decision entitled Matter of Dhanasar, issued on December 27, 2016, the USCIS vacated it’s long-standing precedent decision holding that the petitioner is required to demonstrate that going through the PERM process would be contrary to the national interest.

Previously, the government had restricted the use of NIWs by ruling that an applicant could only qualify for a national interview waiver if he/she could demonstrate that it would be contrary to the national interest to require him/her to undergo the PERM labor certification process.

 

National Interest Waiver Documents

• Form I-140
• Form ETA-750B
• Evidence showing your an advanced degree or exceptional ability
• Evidence of your experienced in the field
• Your resume
• Petition letter drafted by an immigration lawyer
• Letters of recommendation
• Affidavits from leaders in your field
• Evidence of your achievements, mentions and recognition
• Evidence of memberships, publication citations, conferences or other articles

 

National Interest Waiver for Physicians

Congress passed a law which eased the NIW process for physicians who practice in medically-underserved areas or for the Veterans Administration. However, the INS issued regulations which effectively cancelled many important portions of the law.

Our law firm sued the INS in Federal Court, and in 2006, the U.S. Court of Appeals for the Ninth Circuit, in Schneider v. Chertoff, ruled in our favor. Since then, it has become much easier for a physician to qualify for a green card through an NIW.

A physician must work for a minimum of 5 years in either a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA) or for the Veteran’s Administration (VA) in order qualify for a green card through a national interest waiver. Contrary to the former INS regulation, all physicians are eligible for NIWs, primary care doctors and specialists alike. Also contrary to the previous INS regulation, the 5 year period starts not when the I-140 is approved, but as soon as the physician starts working in the HPSA, MUA or for the VA. The physician is permitted to change employers or job locations after he/she has fulfilled the 3-years requirement for a J waiver.

 

National Interest Waiver – Success Stories

• Helping a Person Qualify for an NIW
• Saving a Scientist’s NIW from Revocation
• Professional Athlete – “Curveball: The Immigration Officer Who Knew Too Much”
• Engineers and Nurses

 

National Interest Waiver – Additional Resources

• AAO Non-Precedent Decisions for Advanced Degree, Exceptional Ability, NIW
• NIW for a Physician

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