National Interest Waivers (NIWs)

The "national interest waiver" is a visa category that may be used to petition for U.S. permanent residence (a "green card") either by having employer sponsorship or by self-petitioning. A labor certification is not required. This immigrant visa category falls within the second preference category.

Under a provision of U.S. immigration law enacted in 1990, certain qualifying individuals may avoid the burden of obtaining a labor certification — a recruitment procedure that is a prerequisite to gaining permanent residence through employment — by receiving a waiver of this requirement. Such a waiver also dispenses with a separate requirement that an individual be "sponsored" for permanent residence by a prospective employer.

Attorney Suzanne Granja has extensive experience completing national interest waiver petitions for professionals throughout the U.S. and the world. Call for a free telephone consultation: 760-494-0302.

Legislative History Of The National Interest Waiver

Congress did not define the term "national interest." Moreover, U.S. Citizen and Immigration Services (USCIS) regulations also fail to define it. The Administrative Appeals Office (AAO) has analyzed the term "national interest" and provides two relevant decisions providing some guidance in determining national interest waiver cases.

In Matter of [Name not provided], file No. EAC 92-091-50126, July 21, 1992, commonly known as Mississippi Phosphate, the AAO noted seven factors that may be considered in determining eligibility under the national interest category:

  1. Improve the U.S. economy
  2. Improve working conditions and wages of workers in the U.S.
  3. Improve education for U.S. children and training programs for workers with few qualifications
  4. Improve U.S. health care
  5. Provide affordable housing for young, elderly and poor individuals in the U.S.
  6. Improve the U.S. environment and natural resource use
  7. Receive a request from a U.S. government agency

The other AAO decision used for national interest waiver analysis is a New York State Department of Transportation (NYSDOT) case, which lists three additional factors to be considered in determining whether a petitioner has proven national interest eligibility:

  1. The beneficiary must seek to work in an area of "substantial intrinsic merit."
  2. The beneficiary's work must have a benefit that "will be national in scope."
  3. The beneficiary must "serve the national interest" to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

'Do I Qualify For A National Interest Waiver?'

Many people never apply for a national interest waiver because they do not believe they qualify. Here are some responses to misconceptions we often hear about the NIW:

  • You do not need a Ph.D. to qualify for a national interest waiver.
  • Engineers can get NIWs approved.
  • You can file the I-140 and I-485 together.
  • You do not need a long list of papers or citations for approval.
  • You can be working for a private employer and still get NIW approval.

Let us review your CV and discuss your chances for approval. We have handled many of these cases and will give you an honest evaluation.

Priority Dates And Visa Backlogs

The national interest waiver category falls within the employment-based second preference category (EB-2). This is important because it can determine how quickly you can obtain a green card, not in terms of how long it takes for processing, but in terms of visa backlogs. There can be a visa backlog because there are only a limited number of green card visa numbers available per year.

For additional information regarding the terms priority dates and visa retrogression, you can go to www.uscis.gov/portal/site/uscis/menuitem. To check visa availability, you need to go to the State Department website for the Visa Bulletin. Visa availability is updated monthly.

Discuss Your Case In A Free Telephone Consultation

Obtaining a U.S. visa through the NIW process is faster and more flexible than going through the complicated labor certification process and receiving employer sponsorship. Call 760-494-0302 or contact us online to discuss whether you qualify and begin the application process. Attorney Suzanne Granja has completed hundreds of applications for professionals like you.

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