If a person’s proposed employment will sufficiently benefit the national interest, he or she may be able to file for a National Interest Waiver (NIW) in order to skip the labor certification. The Waiver is only available to EB2 petitions (those with advanced degrees or exceptional abilities). The waiver is most frequently used by postdoctoral researchers, but may be a viable option for those in the arts or business.
National Interest Waiver Requirements
- The person seeks employment in an area of substantial intrinsic merit.
- The proposed benefit will be national in scope.
- The national interest would be adversely affected if a labor certification were required for the worker.
The first two elements are relatively straightforward. Regarding the first element, USCIS does not give blanket waivers for particular fields of endeavor, but NIWs have been granted in a diverse range of fields, including coaches, software developers, business owners, investment analysts, musicians, researchers, and journalists. As for the second element, the impact of a person’s work cannot be purely local, such as the services provided by one worker in a particular location.
The third element is more difficult to satisfy. Since the labor certification process is designed to protect US workers, the benefit from the NIW must outweigh the national interest inherent in the labor certification process. In other words, the NIW applicant’s services must benefit the national interest to a substantially greater degree than would a US worker who met the minimum qualifications for the position.
USCIS determines the degree to which the NIW applicant’s services will benefit the national interest based on the person’s past record. The person must have a past history of specific prior achievements with some degree of influence on the field as a whole, and have established the ablity to serve the national interest to a substantially greater extent than the majority of his or her colleagues. This requirement presumes that the person’s prospective employment will continue in the same field of endeavor as his or her past achievements.
National Interest Waiver Process
There are two parts to filing for permanent residence with an NIW, the I-140 Immigrant Visa Petition and the application for permanent residence, which may be either an I-485 Application for Adjustment of Status for persons in the United States or a Form DS-230 Immigrant Visa Application for persons abroad. If priority dates are current for EB2 (check the Visa Bulletin), then both parts may be filed at the same time. Otherwise, the I-140 is filed first and the application for permanent residence afterwards, when a visa is available.
The processing time for the I-140 is between four to ten months for this category. The I-485 application may take six months to a year to process.
Once the I-485 application for permanent residence is filed, the employee is eligible for a work permit. The employee’s spouse and unmarried children under 21 are also eligible to apply for permanent residence, whether they are in the United States or abroad. If they are in the United States, they are eligible for work permits as well.