EB-2 National Interest Waiver

The National Interest Waiver (NIW) self-petition is another application that does not require the Labor Certification process. NIWs are in the Second Preference category which is a lot faster than the Third Preference category. Thus, if someone meets the standard, depending on where the applicant was born, one would be able to file for his or her green card faster if not simultaneous to the I-140 NIW self-petition.

The controlling case in NIW cases is Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm’r 1998). This case created a three-part test for determining whether an alien should be granted a national-interest waiver.

1. First, the foreign national’s employment must be in an area of “substantial instrinsic merit”
2. Second, the foreign national must prove that his or her benefit will be “national in scope”
3. Third, he or she must benefit the United States to a “substantially greater degree” than available people with the “same minimum qualifications”

The rationale for these self-petitions is that the position is in the national interest. The applicant must show that s/he is seeking work in an area of substantial intrinsic merit to the U.S., that the benefit from the applicant’s work will be national in scope, and that the national interest will be adversely affected if a Labor Certification were to be required for the applicant. Some factors to be considered regarding the applicant’s area of specialization are the effects on the U.S. economy, education, health care, environment, and the like. Again, letters of recommendation, publications, and proof of work citation, are all suggested for a strong application.

Both professionals with advanced degrees and people of exceptional ability seek a waiver of the job offer requirement through the NIW process. These applications involve and I-140 petition, supporting documents such as degrees and publications, and endorsement letters from experts as proof that the applicant is eligible for this classification.