National Interest Waiver

The National Interest Waiver is a waiver of the job offer requirement for foreign nationals who would like to obtain permanent residence in the United States in the employment based second preference category. The waiver is available to individuals who are members of the professions holding advanced degrees and individuals of exceptional ability in the arts, sciences, and business.

Generally, individuals who apply to immigrate in the employment based second-preference category, must have a job offer and the employer must obtain an approved "Labor Certification" from the Department of Labor. The National Interest Waiver relieves the petitioner only from the Labor Certification process. A petitioner requesting a National Interest Waiver on behalf of a qualified alien, or an alien self-petitioning for second preference classification, still must meet all eligibility requirements for this immigrant classification in order to be eligible for the National Interest Waiver.

How We Serve Our Clients

Our dynamic and knowledgable attorneys will consult with you to determine that the nature of the offered position and the foreign candidate's education and professional experience to first determine if they qualify for the employment based second-preference category as an alien holding an advanced degree or an alien of exceptional ability in the ars, science, or business.  We will then analyze the nature of the position and the alien's education and professional experience to determine if they merit a National Interest Waiver.  We will also recommend possible alternative strategies if the foreign beneficiary's experience renders them ineligible for a waiver.  Our attorneys work closely with both the employer and beneficiary to ensure that the required documents are rendered and all legal issues addressed.  We relieve human resources personnel of the burdensome paperwork requirements by preparing all required forms and supporting documents for submission to the appropriate government departments and agencies.  When required, we also prepare and file applications for dependent family members to ensure a smooth transition to the United States for the beneficiary and dependent family members.  Our staff is easily accessible by both the employer and foreign beneficiary to answer questions as they arise.

Eligibility For National Interest Waiver

In 1998 the Administrative Appeals Office of the Immigration & Naturalization Service (predecessor to the USCIS) rendered a decision in the Matter of New York State Department of Transport, setting forth certain criteria for considering National Interest Waivers.  While the USCIS has not established specific criteria for approving NIW petitions, many examiners rely on the aforementioned decision.  Thus, an alien seeking a National Interest Waiver must show that their work will:

1. Improve the U.S. economy;
2. Improve wages and working conditions of U.S. workers;
3. Improve education and training programs for U.S. children and under-qualified workers;
4. Improve healthcare;
5. Provide more affordable housing for young and/or older, poorer U.S. residents;
6. Improve the environment of the U.S. and making more productive use of natural resources; or
7. A request from an interested U.S. government agency or improve international cultural understanding.

In additional to the seven criteria above, the petitoner must provide evidence that:

1. The alien must have at least two years experience in the area in which he will benefit the United States;
2. The National Interest Waiver is not based solely on the alien’s ability to alleviate a local labor shortage;
3. The alien must be involved in an undertaking that will substantially benefit the United States (i.e. it must be national in scope, not localized); and 
4. The alien must play a significant role in the undertaking.