Honolulu, Hawaii Immigration Attorney Helps with National Interest Waivers

A foreign national may qualify for an immigrant visa under the Employment Based Second Preference Immigrant Visa Category if they hold a master’s or higher degree or if they are workers of exceptional ability. For most foreign nationals to qualify under this category, they would need to have a job offer and an employer willing to go through the labor certification process. Certain foreign nationals, whose entry is deemed to be in the national interest of the United States, may qualify for a waiver of the job offer and labor certification process. This exception is often called “the National Interest Waiver” or “NIW”. These foreign nationals may file the petition themselves (without a job offer) and avoid the labor certification process

What are the key requirements for obtaining a National Interest Waiver?

here are two key requirements for obtaining a National Interest Waiver/NIW:

  • The professional must have a U.S. master’s degree or higher (or its foreign equivalent) or be a person of “exceptional ability in the sciences, arts or business.” A person who has a bachelor’s degree and five years of progressive experience in the field has the equivalent to a master’s degree.
  • The professional’s entry into the United States must be in the national interest of the United States.


How is national interest determined?

In December 2016, the Administrative Appeals Office (AAO) set out a new method of analysis to assist the USCIS to determine if a foreign national should qualify for a waiver of the labor certification process through this National Interest Waiver/NIW. To qualify, the foreign national must demonstrate that he/she meets the following three prongs of the test:

  • The foreign national’s proposed endeavor has both substantial merit and national importance;
  • The foreign national is well positioned to advance the proposed endeavor; and
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

1st prong – What is an area of substantial merit and national importance?

For this prong, the focus is on the specific endeavor that the foreign national wishes to undertake. Neither the statute nor the most recent case specifically defines the types of jobs or work that would qualify. However, the following characteristics, which were listed in an old case are still useful to consider in determining if the proposed endeavor is of significant merit and national importance:

  • Improves the U.S. economy (including creating more jobs in the United States)
  • Improves wages and working conditions of U.S. workers
  • Improves education and training programs for U.S. children and under-qualified workers
  • Improves healthcare
  • Provides more affordable housing for young and/or older and poorer U.S. residents
  • Improves our understanding of the U.S. environment, making more productive use of natural resources
  • Fulfills a request from an interested U.S. government agency.

These are just examples to help in your analysis of whether the proposed endeavor might be of significant interest and national importance

2nd Prong – Well-positioned to advance the proposed endeavor.

This part of the analysis focuses on the foreign national’s own qualifications. The USCIS will be considering the foreign national’s education, skills, knowledge and their record of past successes and even the interest of any future customers, users, investors or other relevant factors to confirm that the foreign national is well-positioned to undertake the endeavor. This is where awards that the foreign national has won, publications in peer-reviewed journals, citations to those publications, and letters of recommendation are used to show that the foreign national is the best person to advance the proposed endeavor.

What factors are being balanced in the 3rd prong?

The third prong in this new test seeks to balance the interests of the United States to protect the domestic labor supply by requiring the labor certification process vs. recognizing that there are factors in the national interest that could outweigh those protections. For example, the USCIS must evaluate factors such as whether in the light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical to secure a job offer or obtain a labor certification and/or whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. For the petition to be successful, the consideration of the relevant factors, must, taken together, indicate on balance, it would be beneficial to waive the requirements of the job offer.

Entrepreneurs may qualify for a National Interest Waiver

On August 2, 2011, the White House announced new initiatives for entrepreneurs who create jobs for the U.S. economy. National Interest Waivers may apply if approval of the EB-2 visa petition would be in the national interest of the United States. For more information, see the Q&A issued by U.S. Citizenship and Immigration Services describing how entrepreneurs may be eligible for EB-2 visa classification.
Kahbo Dye-Chiew

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