National Interest Waiver (NIW) petition falls into the employment-based, second preference (EB2) category. The EB-2 category generally requires a permanent job offer and an approved labor certification. However, a NIW petition requests that the labor certification requirement be waived for the sake of the national interest of the United States; thus, allowing an applicant to apply for an NIW immigration petition without a labor certification or a job offer from a U.S. employer.
First, to be eligible to file an NIW petition, the foreign national must have an advanced degree or have exceptional ability in the sciences, arts or business. The foreign national must demonstrate that he/she seeks employment in an area of substantial intrinsic merit to the U.S., that the benefit from the candidate’s proposed activity will be national in scope, and that the requirement of a Labor Certification for the candidate will adversely affect the national interest. Each NIW case is adjudicated on its individual merits.
For an NIW, even if the beneficiary has no employer, he/she may file an NIW petition on behalf of himself/herself. A U.S. employer may also file an NIW petition on behalf of the beneficiary. Furthermore, the beneficiary can file other immigration petitions under other appropriate categories (like the EB-1(a) Extraordinary Ability petition) while a National Interest Waiver petition is pending.
Currently, all employment-based, second preference applicants may simultaneously file an I-485 with their I-140 petitions with the exception of individuals born in mainland-China and India. This means that applicants are eligible to adjust their status and obtain green cards faster than through labor certification or all family based categories other than immediate relatives. Please click here for the latest Visa Bulletin cut-off dates for immigrant visa applications; immigrant visa number availability is updated monthly by the State Department and is subject to change at any time. India and mainland-China born nationals may also obtain NIW I-140 approvals, and will be able to adjust their status when visa numbers become available in the EB-2 category. Watch this video to learn more about the concept of priority dates and their significance in the Green Card process.
NIW applications have clear advantages over other regular employment based immigrant petitions. Since there is no labor certification or permanent job offer requirement, an NIW is an attractive choice for scholars, researchers, post-doctoral research fellows, PhD students, and other advanced degree professionals. While the process of obtaining a NIW is challenging, at the Law Offices of Sweta Khandelwal, we believe that a customized approach to your immigration situation ensures a high probability of success.