> Overview

A National Interest Waiver (NIW) petition is a special form of employment-based green card petition through which a highly talented individual or employer seeking to hire that individual requests that the US government waive the normal requirement of the PERM recruitment process because that individual’s employment is in the national interest of the United States.

PERM is an extremely detailed and expensive recruitment process with very little correlation to modern hiring practices; the employer must show the Department of Labor that no minimally qualified US worker sought to fill the position.

Because no job offer is required, an individual may petition on behalf of himself or herself, making the NIW particularly attractive for entrepreneurs, scholars, researchers, Ph.D. students, and other advanced degree professionals such as engineers. Physician National Interest Waiver has different requirements from other careers. Moreover, in early 2022 USCIS clarified that it will view NIW petitions for STEM beneficiaries very favorably when the beneficiary has a PhD or other advanced degree and their work is focused on critical and emerging technologies, national security, or US competitiveness.

The National Interest Waiver petition must show that the individual:

• Is an advanced degree professional or individual of exceptional ability
• Will serve the national interest through his or her work

The NIW is not limited to specific fields. An individual could qualify in ways such as:

• Improving health care or the environment
• Benefiting the nation’s economy
• Improving wages or working conditions of US workers
• Improving training programs for under-qualified US workers
• Improving education for US children or training for under-qualified US workers
• Developing better use of natural resources or more affordable housing

Due to the NIW petition's highly intricate standards, we strongly encourage anyone wishing to pursue a NIW petition seek the counsel of an immigration attorney.

> What is an advanced degree professional or individual of exceptional ability?

An advanced degree professional:

• Holds a US or foreign-equivalent masters degree or PhD or holds a US bachelor’s degree plus five years of progressive experience in the profession; and
• Works in a field traditionally regarded as a profession including but not limited to legal practice, medical practice, architecture, engineering, and teaching

An individual of exceptional ability can show at least 3 of the following:

• A degree relating to the area of exceptional ability
• A letter from a current or former employer showing at least ten years of experience
• A license to practice the profession
• Evidence of commanding a high salary or receiving other significant renumeration
• Membership in a professional association
• Recognition for achievements and significant contributions to the industry or field from peers, governmental entities, or professional or business associations

> What work will serve the national interest?

The work will benefit the national interest to a substantially greater degree than a US worker with the same minimal qualifications would provide. USCIS looks for the fulfillment of three prongs:

• The applicant's proposed endeavor has both substantial merit and national importance;
• The person is well positioned to advance the proposed endeavor; and
• On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

The first prong relates to the specific work the applicant intends to perform in the United States and what beneficial outcomes will result from that specific work. The benefits of the work do not necessarily need to be economic, but arguments of significant economic impact certainly willl not harm an application. The second prong addresses qualifications towards and and plans or preparation towards the specific work. The government's evaluator only evaluates the third prong after satisfaction that the first two requirements were met. The third prong balances the national interest of protecting US workers with the national interest improved through the prospective NIW beneficiary's proposed endeavor and ability to advance that endeavor. For the third prong, impracticality of labor certification, urgent need of the national interest the prospective NIW beneficiary will improve, and contrasts between the prospective NIW beneficiary with a minimally-qualified US worker can serve as strong arguments in favor of approval whereas merely demonstrating a worker shortage tends to prove counterproductive.

> What documentation should be provided?

To submit the best NIW petition, the individual will need to provide us with as many relevant documents as possible. Such documents include:

• Degree certificates showing educational obtainment of at least the equivalent of a US Masters degree
• Documentation of all relevant awards and honors received
• Resume or curriculum vitae
• Details of funding for any research projects
• All publications including their abstracts (patents are publications)
• Works citing those publications
• Requests to reprint those publications
• Invitations to conferences
• List of all providers of letters of recommendation including names, titles, and documentation of the providers’ professional reputations.

Letters of recommendation can be the deciding factor for an NIW petition. As such, they are especially critical. We will work with each provider to craft the best letters for the individual. Each letter should demonstrate that:

• The provider has the qualifications and reputation to provide a professional opinion of the individual's qualifications
• The individual's knowledge, ability, or experience set him or her apart from his or her professional peers
• The individual will use that knowledge, ability, or experience in an activity significantly benefiting his or her field
• The individual seeks employment in an area of substantial intrinsic merit
• The benefit of the individual's employment in the US will be national in scope
• The national interest would be adversely affected if a Labor Certification is required for the individual's employment in the United States.

For select prospective NIW beneficiaries, one or more letters from an interested government agency or quasi-governmental entity would significantly improve their NIW petition package. Such letters usually come about when a prospective NIW beneficiary has a history with such a government or quasi-governmental entity from working on government contracts or grants.

> Can family members also receive green cards?

Yes. The individual’s opposite-gender spouse and all children under age 21 may also receive green cards.

> Is a physician eligible for a national interest waiver?

Under certain conditions, a physician is eligible for a national interest waiver. The physician must:

• Agree to work full-time in a clinical practice for a period of five years
• Work as a specialist or in a primary care field such as
  • General practice
  • Family practice
  • Internal medicine
  • Pediatrics
  • Gynecology
  • Obstetrics
  • Psychiatry
• Work in a Veterans Affairs facility or a
  • Health Professional Shortage Areas
  • Medically Underserved Areas
  • Physician Scarcity Areas, for specialists
  • Mental Health Professional Shortage Areas, for psychiatrists
• Obtain a statement from a federal agency or a state department of health with knowledge of the physician’s qualifications attesting that the physician’s work is in the public interest.

Timing NIW petitions is critical for physicians. Please consult with an immigration attorney well in advance of any potential application. A physician in J-1 status will need to solve the 212(e) 2-year home residency requirement. No medical service when in J-1 status applies towards the Physician NIW work requirements.

> Is an entrepreneur eligible for NIW?

Yes. An entrepreneur's proposed endeavor is the entrepreneur's business venture, a US business entity. The entrepreneur's NIW petition will need to fulfill the three prongs:

• The applicant's proposed endeavor has both substantial merit and national importance;
• The person is well positioned to advance the proposed endeavor; and
• On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

Evidence towards the prongs for an entrepreneur should come in forms including:

• Ownership and role in a US entity
• Ownership of intellectual property significant to the field of endeavor
• Ability to perform in their role with the entity as shown through degrees, certifications, licenses, or relevant previous success
• Investments in the US entity
• Participation in an incubator or accelerator program with a track record of success
• Grants or awards
• Publications about the entrepreneur or US entity
• Third-party letter of support

> How long does the NIW petition process take?

The government’s service centers overseeing national interest waiver petitions are facing a backlog of six to ten months. Because unexpected delays can occur, we suggest allowing for at least one year when planning.

National interest waivers are part of the EB-2 category. Please refer to the Adjustment of Status Filing Chart to see if the EB-2 priority date is current for your changeability country. Chargeability country means country the applicant is considered to be from. Priority date is the date for and before which USCIS accepts applications for adjustment of status. .You want the date for the country to be "current." This frequently impacts people from India and The People's Republic of China but sometimes impacts others too.

Yes. The government charges a fee of $2500 for premium processing. USCIS must respond to the petition within 45 calendar days or refund the premium processing fee.

> How much does it cost?

The government's fee for an EB-2 NIW petition is $700. If the applicant will remain in the US to await a green card, an additional $1225 is required for the I-485, or if the applicant will obtain an immigrant visa at a consulate after approval of the EB-1 petition, the government will charge fees of $325 before the interview and $220 after the interview. This does not include attorneys fees and other expenses. Remember I-485 is not available if the priority date is nor current.

> I think I qualify for a National Interest Waiver visa. What do I do now?

Contact us to schedule a consultation.

> I don’t think I qualify for a National Interest Waiver. What can I do?

Contact us to schedule a consultation. You may be underestimating yourself!