The Immigration Act of 1990 created a previously unavailable mechanism for obtaining employment-based permanent residency: National Interest Waiver (NIW). National Interest Waiver is a waiver of the job offer requirement and labor certification application, if the alien can prove that, he or she is:
Alien of exceptional ability OR an advanced degree professional; AND
Involved in an activity which could benefit the national interest.
National Interest Waiver based immigrant visa application falls under employment-based 2nd preference (EB-2).
Advantage
National Interest Waiver is critical for many individuals who wish to avoid the labor certification process. As such, an applicant may self-petition (i.e. without employer sponsorship).
Main Qualifying Criteria
In short, applicants for National Interest Waiver ("NIW") must show that if they are granted permanent residence, their work will substantially and prospectively benefit the economy, culture, or educational interest or welfare of the U.S. CIS has set forth the general factors which will be considered in connection with a National Interest Waiver application. These factors include whether granting the waiver will:
Improve the US economy;
Improve wages and/or working conditions for US workers;
Improve health care;
Improve education or training programs for US children and under-qualified workers;
Provide more affordable housing;
Improve the environment and assist with the conservation of natural resources;
Upon request of an interested government agency.
At the end of the 2016, the Administrative Appeals Office (AAO) published a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). In this case, the AAO has significantly revised the analytical framework for evaluating National Interest Waiver (NIW)-based immigrant visa petitions that had been established in 1998 in Matter of New York State Dep’t of Transportation (NYSDOT).
Matter of Dhanasar established a new 3-pront test: USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:
that the foreign national’s proposed endeavor has substantial merit and national importance;
that the foreign national is well positioned to advance the proposed endeavor; and
that, on balance, it would be beneficial to the United States to waive the labor certification requirement.
Main Qualifying Criteria
In short, applicants for National Interest Waiver ("NIW") must show that if they are granted permanent residence, their work will substantially and prospectively benefit the economy, culture, or educational interest or welfare of the U.S. CIS has set forth the general factors which will be considered in connection with a National Interest Waiver application. These factors include whether granting the waiver will:
Improve the US economy;
Improve wages and/or working conditions for US workers;
Improve health care;
Improve education or training programs for US children and under-qualified workers;
Provide more affordable housing;
Improve the environment and assist with the conservation of natural resources;
Upon request of an interested government agency.