The “National Interest Waiver” or “NIW” is a rather underutlized approach to obtaining legal permanent residence in the United States. It is available to foreign nationals working in the US in various fields such as business, education, the arts, and sciences whose employment within the United States is in the “national interest” of the country on a national level.
The waiver refers to waiving the traditional process of labor certification if the person meets the NIW criteria. This is a huge advantage because labor certification requires marketing the foreign national’s job to US workers, which may result in the process stopping. It is also an advantage to avoid labor certification because it is time consuming and confers no legal status when completed. Currently, labor certification can easily take close to a year to complete. Finally, a large advantage of the NIW application is that one can self petition and is not tied to a particular company in order for the application to be successful.
The criterion were laid out in the signature case issued by the AAO in the Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm. 1998) . Prior to NYSDOT, NIWs were granted to a much broader field of applicants including a lawyer who was committed to doing pro bono work and a trombonist. NYSDOT has restricted the use of the NIW for foreign nationals qualifying for placement in the EB-2 category, but the Administrative Appeals Office (“AAO”) has clearly defined a three-prong test as the legal standard for adjudicating NIW petitions. Under this test, the foreign national must demonstrate that:
- The area in which the foreign national seeks employment is of substantial intrinsic merit;
- The prospective benefit of the foreign national’s services is national in scope; and
- The national interest would be adversely affected if a labor certification were required. That is, the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
The most difficult prong to prove is the third one: serving the national interest to a “substantially greater degree” than one’s peers. While it is clearly below the levels set out under the more onerous Outstanding Researcher or Extraordinary Ability criteria, a person still needs to stand well above his or her peers and/or show unique skills that clearly show labor certification should not be pursued. In short, those that should pursue the NIW are exceptional individuals whose achievements qualify them as leaders and innovators in their specific field.
If you believe your qualifications would meet the NIW criteria, please consult with an experienced immigration lawyer about your situation. Contact Denver immigration attorney Catherine Brown to schedule a consultation. Contact us online or call us at 303-322-2117.