An Exception to Labor Certification: the National Interest Waiver
The National Interest Waiver (NIW) is an important exception to the labor certification process required for EB-2 visa petitions. Aliens seeking a national interest waiver are requesting that the labor certification process be waived in the interest of the United States. One of the key advantages to the National Interest Waiver is that the foreign national may self-petition. In other words, a foreign worker does not need an employer to sponsor her.
Requirements
The requirements for the national interest waiver were established by In re New York State Dept of Transportation, 22 I&N Dec. 215 (Comm. 1998). An alien applying for the National Interest Waiver must satisfy the following 3 requirements:
- The beneficiary must seek to work in an area of substantial intrinsic merit;
- The beneficiary’s work must have a benefit which will be national in scope;
- The beneficiary must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications and the national interest would be adversely affected if a labor certification were required for the beneficiary.
Proving your National Interest Waiver case
Practically speaking, proving substantial intrinsic merit and nationwide scope is far easier than proving that the foreign worker’s services are substantially greater than a U.S. worker with the same minimum qualifications. Successful National Interest Waiver cases should document a past record of specific, prior achievements in the field, rather than speculative future achievements. Evidence should include publications (especially first-authored publications), documented achievements in research, the testimony or opinion of independent recommenders, citations, commercialization of patents, or any other evidence that proves the third criterion.
National Interest Waiver applications are complex and are determined on a case-by-case basis by the evidence presented with the application. Even with a thoroughly prepared case, it is common for applicants to receive an additional Request for Evidence (RFE) from U.S. Citizenship and Immigration Services (USCIS). If you have any questions about the National Interest Waiver process or employment-based immigration visas in general, we at Donati Law would be honored to assist you.
Links
USCIS – Green Card Through Self-Petition
In re New York State Dept of Transportation, 22 I&N Dec. 215 (Comm. 1998)
