NATIONAL INTEREST WAIVER
A national interest waiver (NIW) is available to a person seeking a green card who can show the following:
1. That their proposed endeavor has both substantial merit and national importance;
2. That he or she is well positioned to advance the proposed endeavor; and
3. That, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements.
Normally, if you qualify for a green card under the second employment-based EB-2 category (Persons Holding Advanced Degrees and Persons with Exceptional Ability in the Arts, Sciences and Business), your employer must undergo the PERM labor certification process. This requires the employer to advertise the job and demonstrate to the U.S. Department of Labor that no qualified U.S. workers applied for the job.
However, where your endeavor is deemed to be in the national interest, the USCIS may waive the requirements of a job offer and the PERM labor certification.
On January 21, 2022, USCIS issued a new policy which is intended to make the national interest waiver more broadly available to foreign nationals with STEM backgrounds who are pursuing endeavors that benefit the United States, including entrepreneurial ventures. See additional resources below.
Though the jobs that qualify for a national interest waiver are not defined by statute, NIWs are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking an national interest waiver do not need an employer to sponsor them. They may self-petition by filing Form I-140 directly with the USCIS.
In a 2016 decision entitled Matter of Dhanasar, the USCIS held that a national interest waiver petitioner is not required to demonstrate that going through the PERM process would be contrary to the national interest.
Previously, the government had restricted the use of NIWs by ruling that an applicant could only qualify for a national interview waiver if it could be demonstrated that it would be contrary to the national interest to require him to undergo the PERM labor certification process.
National Interest Waiver – Overview of the 3 Prongs
- The Proposed Endeavor has both Substantial Merit and National Importance
- The Person is Well Positioned to Advance the Proposed Endeavor
- On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements
Petitioners may submit evidence relating to one or more of the following factors, as outlined in Matter of Dhanasar:
* The impracticality of a labor certification application;
* The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and
* The national interest in the person’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM fields.
More specific considerations may include:
* Whether urgency, such as public health or safety, warrants foregoing the labor certification process;
* Whether the labor certification process may prevent an employer from hiring a person with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the labor certification;
* Whether the person’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization; and
* Whether the person’s endeavor may lead to potential job creation.
Exception: National Interest Waiver for Physicians
Congress passed a law which eased the national interest waiver process for physicians who practice in medically-underserved areas or for the Veterans Administration. However, the INS issued regulations which effectively cancelled many important portions of the law.
Our law firm sued the INS in Federal Court, and in 2006, the U.S. Court of Appeals for the Ninth Circuit, in Schneider v. Chertoff, ruled in our favor. Since then, it has become much easier for a physician to qualify for a green card through a national interest waiver.
A physician must work for a minimum of 5 years in either a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA) or for the Veteran’s Administration (VA) in order qualify for a green card through a national interest waiver.
Contrary to the former INS regulation, all physicians are eligible for NIWs, primary care doctors and specialists alike. Also contrary to the previous INS regulation, the 5 year period starts not when the I-140 is approved, but as soon as the physician starts working in the HPSA, MUA or for the VA. The physician is permitted to change employers or job locations after he/she has fulfilled the 3-years requirement for a J waiver.