National Interest Waiver

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A National Interest Waiver allows an EB-2 applicant to bypass the labor certification process, although he/she must submit a statement explaining eligibility for the waiver. The concept behind the National Interest Waiver (NIW) is that the national interest in allowing certain foreign nationals to work in certain jobs outweighs the national interest of guaranteeing that there are no U.S. citizens who can perform the same job, as tested through the labor certification (PERM) process. As such, it follows that the NIW category is narrow and there is a much higher standard of proof for NIW than for the general EB-2 exceptional ability. NIW applicants must meet the basic EB-2 requirements set forth above regarding an advanced degree. Note also that NIWs are only available for EB-2 applicants, not for EB-1 or EB-3 applicants.

The current standard for NIW is derived from the case Matter of New York State Department of Transportation (NYSDOT). That case presented three factors for determining whether a NIW should be granted:

1. The applicant seeks employment in an area of substantial intrinsic merit.
2. The benefit of the applicant working in this area will be national in scope.
3. The national interest would be adversely affected if a labor certification were required.

Prior to the NYSDOT case, the AAU (Administrative Appeals Unit) considered seven factors for NIW:

• Improving the U.S. economy;
• Improving wages and working conditions for U.S. workers;
• Improving education and programs for U.S. children and underqualified workers;
• Improving health care;
• Providing more affordable housing;
• Improving the U.S. environment and making more productive use of natural resources and
• Interested government agency request.

Further notes concerning the current NYSDOT NIW standard:

1. Many fields have been held to have substantial intrinsic merit, including academics, sports, art, engineering, medicine and computer programming. This is generally not a hurdle for establishing an NIW claim.
2. Although the benefit must be national in scope, the work itself can be local. For example, in the case that established the modern NIW standards, a structural engineer who only worked in one area of New York state was found to be doing work that was national in scope because his work would impact commuters from various states.
3. This standard is generally the hardest to meet, and the most complex to document. The applicant must show that he/she can serve the national interest to a substantially higher degree than others in the field. It is also vital to show that the applicant has a past history of some degree of influence on the relevant field as a whole. This is usually demonstrated through reference letters from others in the field. If an applicant can get a letter from a researcher at a government institution attesting to the national significance of their work, it significantly increases the chances of approval. It is also useful to show an applicant’s accolades in the field through documents not created specifically for the NIW application process, i.e. recognition at conferences and letters from other field experts that were not written solely for the purpose of submission with the application. Finally, an applicant should submit other evidence of their achievements in the field, including articles, patents, and other proof that they have contributed to the field in the past, and will therefore be able to contribute substantially in the future.