National Interest Waiver

The National Interest Waiver (NIW) is part of the second employment-based category (EB-2) for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D.). Ph.D. students also qualify. An alien may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his or her admission to permanent residence would be in the national interest. A person who qualifies for the National Interest Waiver is deemed to be of such value to the United States that he/she is not required to process a labor certification or have a job offer.

The NIW is a good option for those who do not wish to wait several years for labor certification or those who do not wish to be tied to a specific employer during labor certification. The NIW applicant sponsors him or herself and is not required to have a job. NIW applicants may make additional green card applications while their NIW petition is pending. Furthermore, if the NIW applicant is employed, the employer will not have knowledge of a pending NIW application.

The National Interest Waiver also applies to physicians. Physicians who agree to work full time in a designated health professional shortage area or in VA hospital and where a federal agency or state department of public health has determined that the physician’s work is in the public interest for an aggregate of five years (not including time in J1 visa status) can obtain an NIW green card.

The National Interest Waiver or NIW is part of the second employment-based category (EB-2) for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals. In order to be considered an alien of exceptional ability, the USCIS regulations require that at least three of the following types of evidence be established:

• An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
• Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is sought;
• A license to practice the profession or certification for a particular profession or occupation;
• Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
• Evidence of membership in professional associations;
• Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations.

Could I possibly qualify for the National Interest Waiver?

In addition to the requirements mentioned above, the USCIS will consider the following factors in evaluating a request for National Interest Waiver:

• Whether the alien seeks employment in an area of substantial intrinsic merit. Basically, is an important national goal involved in the alien’s particular field of endeavor?
• Whether the proposed benefit will be national in scope. Merely serving a regional or local interest is not sufficient. The emphasis of this factor is on the existence of a national goal that the alien will promote.
• Whether the national interest would be adversely affected if a labor certification would be required for the alien. The first step in meeting this test is establishing that the alien possesses unique knowledge, abilities, or experience that set him or her apart from other professionals in the field. The second step is establishing that the applicant will use these unique attributes in an activity that will significantly benefit her/his field of endeavor.

Sample cases of NIWs approved by the USCIS are discussed below.

Supporting documents that you will need for the preparation and processing of the National Interest Waiver:

• Evidence of current nonimmigrant status (H, J-1, F-1, etc.)
• Your Curriculum Vitae
• Copies of college/university degrees and official transcripts
• Letters of recommendation from colleagues or other authorities in your field including his/her CV/resume
• All of your publications, presentations, and abstracts
• Citations of your publications
• Comments on your papers by referees of journals
• Requests for reprints of your publications
• Evidence of awards or honors received
• Evidence of membership in professional associations
• Invitations to conferences (past and future)
• Documents on the funding of your research projects, or grant numbers
• Documents of your participation, either individually or on a panel, as the judge of the work of others in your field
• Any publications in which you or your work is discussed
• Transcripts or tapes of any interviews or other events you or your work was the subject or feature (video or audio)

Filing Procedures

To obtain a national interest waiver, you must file a Form I-140 Immigrant Visa Petition, Form ETA 750B, and supporting documents directly with the appropriate USCIS Regional Service Center. You do not have to file anything with the Department of Labor. You may also file your application for adjustment of status at the same time as your I-140 Petition.

Processing Times

Processing times for NIW applications depend on the case load at the USCIS which can vary greatly over time. Current processing times are estimated by all of the Service Centers, but those are just estimates.

Sample cases approved under the NIW Category

Environmental Chemist

Beneficiary specializes in catalytic use in petroleum and other fossil fuel refining, quality control, risk management and remediation. Educational credentials consist of two Masters Degrees in Chemistry and Environmental Management, a Doctorate Degree in Chemistry, and completion of post-doctoral studies in Public Policy and Management with a concentration in Environmental Policy. Evidence to support the petition included: honors and awards, reference letters from renowned experts in the field, as well as Beneficiary’s own published materials.

Approval of the case was based on the following arguments:

Beneficiary’s contributions to the development and dissemination of innovative research in the field of Environmental Chemistry and education are invaluable to the environmental goals of the United States for the next century.
Beneficiary’s novel research and overwhelming support from leading members of U.S. governmental agencies, such as the EPA, as well as, prominent Environmental Scientists and Chemists across the world. Beneficiary’s work would lead to more productive use of natural resources, improving and protecting of the health of United States citizens, improving working conditions by eliminating hazardous by-products and high pressure/temperature equipment usage, and ensuring compliance with U.S. Federal Laws.

Materials Engineer and Researcher

Beneficiary specializes in Ceramics. Educational credentials include a Ph.D. in Ceramics, an M.S. in Ceramic Engineering, and a B.S. in Metallurgical Engineering.

Approval of the case was based on the following arguments:

Beneficiary’s research achievements in ceramics and glass formation in opto-electronic applications and infrared transmissions technology, as being invaluable to defense, healthcare and industry in the United States.
Beneficiary’s work was national in scope and in an area of substantial intrinsic merit because of the increased demand for advanced ceramics for use in telecommunications, computers, petroleum and chemical processing, and biomedical engineering. Supporting documentation included appropriate reference letters, honors, awards and the Beneficiary’s published material.

Chemical Engineer

Beneficiary specializes in the critical areas of lignocellulosic biomass conversion and biofuel development. Education credentials include Ph.D., M.S., and B.S. degrees in Chemical Engineering. Evidence to support the petition included: honors, awards and membership certificates (professional associations), conference proceedings, reference letters from experts in the field, and Beneficiary’s published materials.

Approval of the case was based on the following arguments:

Beneficiary’s work is highly commendable based on his dedicated research achievements attained for advancement of biotechnology, particularly in bio-energy production from renewable biomass. Beneficiary’s work is critical to the United States due to the increased threat of fossil fuel depletion, and the United States’ interest in developing environmentally friendly and economically sound fuel alternatives. Beneficiary’s research would reduce foreign oil imports, reduce carbon dioxide in the atmosphere, and better the environment and health of the United States as a whole.

Pharmaceutical Researcher

Beneficiary specializes in cancer research and drug delivery systems. Educational credentials include Ph.D., M.S., and B.S. degrees in Pharmaceutical Sciences. Evidence in support of the petition included honors and awards, reference letters from experts in the field, and the Beneficiary’s published materials.

Approval of the case was based on the following arguments:

Beneficiary’s groundbreaking and internationally renown work in the treatment of Cervical and Prostate Cancer is of significant value for the advancement of healthcare in the United States. The benefit of the Petitioner’s work to the health and economy of the United States.

Biomedical Researcher

Beneficiary specializes in genetics and molecular biology. Education credentials include a Ph.D. in Life Sciences, a M.S. in Cytogenetics, and a B.S. in Botany. Evidence in support of the petition included honors and awards, reference letters from experts in the field, and the Beneficiary’s published materials.

Approval of the case was based on the following arguments:

Beneficiary’s groundbreaking research on the cloning of the MEN1 gene, previously attributed to sporadic endocrine tumors at the National Institutes of Health (NIH), is of great significance to the U.S. national economy and healthcare.
Beneficiary’s research is national in scope, is of substantial intrinsic merit. Petitioner’s employment is not based on a shortage of qualified workers. National health and economic prosperity benefit through the dissemination of the petitioner’s research, including dramatic improvements in mortality and morbidity rates from tumors in the United States and increased revenues by improving the cost-efficiency of health care.

Biochemist

Beneficiary specializes in lung research and transcription factors. Education credentials include two Masters Degrees in Biochemistry and a B.S. in Chemistry. Evidence in support of the petition included honors and awards, reference letters from internationally recognized experts in the field, and the Beneficiary’s published materials.

Approval of the case was based on the following arguments:

Beneficiary’s contributions to the cloning and sequencing of genes related to congenital heart defects in children and cystic fibrosis, are central to the ongoing research efforts of scientists and researchers across the United States and the world. Significant improvement of national health and economy due to the Beneficiary’s research, as the Beneficiary’s unique and pivotal research will continue to enhance the understanding of the causes of many diseases. Beneficiary’s work is both national in scope and of substantial intrinsic merit.

Chemical Engineer

Beneficiary specializes in the highly complex field of particle agglomeration. Educational credentials include Ph.D., M.S., and B.S. degrees in Chemical Engineering. Evidence to support the petition included: honors, awards and membership certificates (professional associations), conference proceedings, reference letters from experts in the field, and Beneficiary’s published materials.

Approval of the case was based on the following arguments:

Beneficiary is a unique individual who combines a comprehensive academic background in Chemical Engineering with an aptitude for software development. Such an integration has significantly advanced the field of Chemical Engineering.
Beneficiary’s work involved the development of a computer simulation for the particle agglomeration process, which has since modernized the field of Chemical Engineering. Beneficiary’s work and use of computational models was recognized by the U.S. research community as having a major impact on the cost efficiency and reliability of the particulate process industries and the reduction of product development time. Better use of valuable natural resources and improvement of the U.S. economy.