EB-2 National Interest Waiver Overview
The National Interest Waiver (NIW) may be granted to certain EB-2 (Employment-Based Second) preference visa applicants whose work is in the national interests of the United States. NIW waives the normal requirement that applicants undergo the labor certification (PERM) requirement, which means that the applicant’s employment will not displace or negatively impact US workers.
EB-2 Eligibility
Before delving into whether applicants qualify for NIW, they must first demonstrate that they meet the threshold for EB-2 in that they either have an Advanced Degree or Exceptional Ability.
Advanced Degree
To qualify for Advanced Degree, applicants must show that they hold either a U.S. master’s degree (or higher) or a foreign equivalent; or a U.S. bachelor’s degree (or foreign equivalent) plus at least five years of progressive, post-baccalaureate work experience in the field of specialization.
Exceptional Ability
Applicants who do not hold advanced degrees, or if the degree does not align with their field of specialization, they can still qualify for EB-2 by demonstrating “exceptional ability.” USCIS defines this as a degree of expertise significantly above what is ordinarily encountered in the sciences, arts, or business.
To prove this, you must provide documentation showing that you meet at least three of the following six criteria by presenting:
- An official degree, diploma, or certificate from a college or university related to your area of expertise.
- Evidence from current or former employers showing at least 10 years of full-time experience in your occupation
- A license to practice your profession.
- Evidence of high salary or other compensation that demonstrates exceptional ability compared to others in the field.
- Proof that you are a member of professional associations.
- Evidence of recognition for your achievements and significant contributions to your industry or field by peers, government entities, or professional organizations.
- Other comparable evidence of eligibility is also acceptable.
NIW Analysis
Once you establish eligibility under EB-2, the next step is to analyze whether you meet the three requirements for obtaining a National Interest Waiver under Matter of Dhanasar, namely:
1. Evidence That Your Proposed Endeavor Has Substantial Merit and National Importance
You must show that what you plan to do has significant positive impact on the U.S. Your work could improve healthcare, advance technology, bolster the economy, or solve critical challenges in education or culture. The key is proving that the impact of your work reaches beyond your employer or client.
2. Evidence That You Are Well-Positioned to Advance Your Endeavor
This section spotlights your educational background, your track record of success, your technical skills, and your influence in your industry. It is a presentation of your past, present, and future trajectory to show that you are capable of advancing your proposed endeavor.
3. On Balance, It Would Be Beneficial to the United States to Waive the Job Offer and Thus the Permanent Labor Certification Requirements
You must show that, on balance, the United States benefits more by waiving the labor certification requirement than by requiring it. Your contributions are so valuable that the typical U.S. labor market shouldn’t apply to you and your work in the U.S. does not impact the U.S. workforce negatively.
Is NIW right for you?
The NIW category is particularly well-suited for professionals in fields such as science, technology, healthcare, business, and entrepreneurship whose work contributes significantly to the U.S. economy, innovation, public health, or other critical national priorities. Because the process does not require employer sponsorship, it offers greater flexibility and independence for qualified individuals seeking permanent residence in the United States. However, it is highly scrutinized by USCIS and requires strategic positioning of your endeavor to meet the three prongs of Dhanasar, and meticulous building of compelling evidence to show your significant contributions and achievements.
