National Interest Waiver

The National Interest Waiver (NIW) is a waiver of the job offer for individuals who wish to immigrate to the USA under the employment-based second preference category (EB-2). To qualify, aliens must be members of the professional holding advanced degrees or who have exceptional ability in the sciences, arts or business. By testifying that a waiver of a job offer is in the "national interest," the alien is not subject to the labor certification requirement otherwise applicable to 2nd preference aliens.

Criteria for NIW petition:

Based on 1990 Immigrant Act, for qualifying NIW category, the alien must show that his/her current research serves the “National Interests” in at least one of the following:

  • Improving the U.S. economy;
  • Improving wages and working conditions of U.S. workers, creating employment opportunities;
  • Improving education and training programs;
  • Improving health care;
  • Providing more affordable housing for young or older, poorer U.S. residents;
  • Improving the environment of the U.S. and making more productive use of natural resources;
  • Improving cultural awareness and diversity through artistic endeavors;
  • Having significant scientific contributions;
  • Involving a request from an interested U.S. government agency.

It is important to mention that, in 1998, the CIS Administrative Appeal Office (AAO) designated it first precedent decision in the case of Matter of New York State Department of Transportation (NYDOT) aiming at guiding NIW adjudication. NYDOT establishes stricter standard for obtaining NIW than those applicable in the past. Pursuant to Matter of New York State Department of Transportation, The new standard for approval of a NIW has to be satisfied on the following aspects:

  1. Evidence that the benefits of your proposed employment will be national in scope;
  2. Evidence that you seek employment in an area of substantial intrinsic merit;
  3. Evidence that your ability is "exceptional", which is defined as "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business;"
  4. You must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required, which means that it would be contrary to the national interest to potentially deprive the prospective employer of your services by making available to U.S. workers (having the minimum qualifications) the position you seek.