National Interest Waivers (NIW) Explained

What is a National Interest Waiver (NIW)?

The National Interest Waiver (NIW) is available to foreign nationals with remarkable talent in the arts, sciences, or business and advanced degreed professionals. Also eligible are Ph.D. students. To be more specific, an NIW is a waiver that a foreign national can request if they want to be able to work legally in the US but do not yet have a job offer. The National Interest Waiver is a method for avoiding the arduous labor certification process, typically a requirement for acquiring permanent residence under the second preference EB-2 employment-based green card category, and is managed by the Department of Labor.

It is in the “national interest” of the United States to admit those who have been granted NIWs by the USCIS because they are extremely talented in their area. Researchers in the biological sciences, professors who have had an impact through publications or honors, or doctors who come to the United States are a few examples. 

The applicant must first submit Form I-140, also known as the “Immigrant Petition for Alien Worker,” in order to be considered for an EB-2 visa. The trick to getting this waiver, though, is being able to demonstrate that your work will actually be of significant value to the US. 

 

What Benefits Are There to Requesting a National Interest Waiver?

Getting this waiver has a number of advantages. One is that you do not need to apply for a real job or have a company support your application, as was already indicated. Although employer sponsorship is an option, you may choose to apply for the national interest waiver on your own if your employer is disinclined, if you don’t have a specific job offer, if you don’t have a specific employer in mind, or if you want the flexibility to launch your own business or change jobs in the near future without compromising your immigrant status.

You also avoid going through the labor certification, or PERM, process, which is usually necessary for EB-2 and EB-3 categories. This reduces costs, effort, and time. If your application for a national interest waiver is approved by USCIS and you have an H-1B visa that allows you to work in the country, you could be able to extend your H-1B status beyond the standard six-year period. 

 

What Conditions Must Be Met Legally for a National Interest Waiver?

You must first meet the requirements for the EB-2 category, which include possessing an advanced degree or extraordinary talent, in order to be eligible for a national interest waiver. You must also meet a stringent set of requirements specific to your field of expertise. 

You would need to possess a Master’s, Ph.D., or other post-baccalaureate degree in addition to five years of experience to meet the advanced degree requirement. In reality, you will probably need to demonstrate your high level of ability in your industry even if you decide to apply primarily for your advanced degree. This is due to the requirement that you show how your employment would significantly advance American interests in order to be granted a national interest waiver.

You must first prove you possess either an advanced degree or remarkable talent (or both) before passing the three-part test set forth in the Matter of Dhanasar case, 26 I&N Dec. 884. (AAO 2016). This entails demonstrating that:

  • The work you want to conduct in the United States has both substantial merit and national importance.
  • You are “well positioned”, based on your credentials and experience to further your intended work.
  • It would be in the national interest to exempt you from the standard labor certification and employment requirements.

 

Documents Needed for NIW Applications

NIW applicants must include the following supporting documents with their application, which they can either upload through their USCIS account or include with the package they ship to a USCIS lockbox, along with the appropriate fee:

  • I-140 form completed as a self-petitioner
  • Academic transcripts
  • 3 letters of recommendation, preferably from mentors, coworkers, or former employers who can speak to your influence in a given field of study, etc
  • Publications, honors, recognition, certifications, and/or licenses, and other credentials
  • Paystubs to confirm that the candidates’ salaries were competitive for their respective professions
  • An updated resume
  • Any additional proof of accomplishments in the field of study

 

NIW Application Processing Times

Depending on the applicant’s filing location, the processing period for Form I-140 might range from 10.5 to 26.5 months. The applicant must check the U.S. after receiving a notice of approval. To find out if a green card is accessible, consult the Visa Bulletin of the Department of State. 

The application for a green card may be started after a visa is made accessible. If submitting an application from within the country, they must include Form I-485. The length of the wait varies by region, however, it may take USCIS more than two years to process the application.

The applicant will probably have to wait 4 to 6 months if applying from overseas (through consular processing), though these times may be extended due to Covid-related delays. The applicant can file I-140 along with the green card application if a permanent residence card is instantly accessible, which could help save time.

 

What If My NIW Is Rejected?

There is always a chance that your petition won’t be authorized in immigration law. Here are some typical causes you would want to prevent an NIW denial or have already encountered one:

  • Not effectively arguing your point: just listing your credentials is not enough. Additionally, you must state your arguments in a way that justifies your eligibility under the rules.
  • Poor recommendation letters: Ensure that the people writing your letters of recommendation are professionals who can support their statements with evidence from your work.
  • Submitting too much proof: If you clog up your case with unnecessary paperwork, your evaluator is likely to overlook the more crucial facts.

If your NIW was rejected, you have three options: file a formal request to reopen or reconsider your case; file an appeal with a third party; or speak with an immigration lawyer to determine whether you have any additional options for obtaining a green card. It is crucial to remember that these are complex legal processes that should not be handled without the assistance of an immigration lawyer.

 

Tracking Your NIW Application

  • By Mail – When it comes to your case, USCIS will send out official notifications, so be sure your mailing address is accurate and accessible.
  • By Phone – If you believe that something has happened to your application, be sure to contact the USCIS Contact Center. The phone number is 1-800-375-5283.
  • Online – View the status of your application by logging into your USCIS account. Verify to determine if an RFE has been received after the 3-month window.