Brief Summary of the EB-2 National Interest Waiver Category

Government and industry in the United States have always tried to attract the “best and the brightest” from around the world in their efforts to maintain this nation’s position as a world leader in the science, art and business spheres. For those individuals working at the forefront of their fields, the opportunities available in the U.S. provided by the best educational, research, infrastructure, funding and business development resources are major attractions for international talent.

The U.S. immigration laws provide a number of options for such leaders and innovators to live and work in the U.S. as lawful permanent residents. One of the fastest and most efficient methods to obtain permanent residence in the U.S., particularly for leading scientific researchers, is the EB-2 National Interest Waiver (“NIW”) category. The NIW application falls into the employment-based immigration, second preference (“EB-2”) category, and it offers unmatched advantages for distinguished scientific researcher from around the world to secure a U.S. green card and continue their important research at the top institutions of their choice in this country.

Who Is Eligible

Normally, a permanent job offer and an approved labor certification from U.S. Department of Labor are pre-requisites to file an employment-based second preference immigrant petition. However, a NIW petition requests that the labor certification requirement be waived for the sake of the “national interest of the United States.” This allows individual applicants to apply for the NIW category on their own without a labor certification or a job offer from a U.S. employer.

In order to be eligible to file a NIW application in the first place, a beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts or business. The applicant must also persuasively demonstrate that he or 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, but the burden of proof is always on the applicant to establish that exemption from the labor certification will be in the national interest of the U.S.

“Substantial Intrinsic Merit”

In addition to the scientific disciplines, the required “substantial intrinsic merit” may be demonstrated in a range of areas such as business, entrepreneurialism, technology, culture, health, or education. Evidence that the endeavor has the potential for significant economic impact may be a favorable, but not necessary, factor; and areas such as research, pure science, and the furtherance of human knowledge may qualify without economic impact.

And prospective national benefit is not evaluated solely in geographic terms, as a project in one geographic area can still have impacts and significance on a national level. For example, a researcher’s significant findings in a laboratory in San Diego can potentially impact the entire U.S. population if it translates into effective therapies for human disease.

Who Files

Although an applicant can file a NIW application on his or her own behalf, a U.S. employer can also file a NIW application on behalf of the applicant/beneficiary. Furthermore, the beneficiary can also potentially file other immigrant petitions under appropriate categories, such as an EB-1 Extraordinary Ability Petition, while a National Interest Waiver application is in process.

As mentioned, a NIW applicant must first qualify for the EB-2 category by having either an advanced degree or exceptional ability. In addition, they must satisfy a rigorous set of criteria related to their area of expertise. The following is a brief summary of these threshold requirements for an individual applicant.

Requirements

To satisfy the advanced degree requirement, you need to have a Masters, Ph.D., or other post-baccalaureate degree (or a Bachelor’s degree plus five years of experience). Alternatively, to fit the “exceptional ability” requirement, you would need to assemble extensive documentation showing that you satisfy at least three of the following:

• An official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability.
• Letters documenting at least ten years of full-time experience in your occupation.
• A license to practice your profession or certification for your profession or occupation.
• Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability.
• Membership in one or more professional associations, usually ones that require achievement in order to be a member.
• Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, or professional or business organizations.

According to USCIS, “other comparable evidence” of eligibility is also acceptable, but the agency usually requires applicants to first show that evidence from the above categories is unavailable or inapplicable.

As you can see, the NIW is an ideal solution for leading scientific researchers who want to live and pursue their cutting-edge work in the United States. Proof of such researchers’ prominence in their field can come in the form of publications in peer-reviewed journals, citations, patents, and supporting affidavits from expert peers in their scientific discipline.

Sample of Occupations

In addition to scientists, our office has helped many clients obtain national interest waivers in a variety of “niche” occupational fields including a) an economist researching the demographics of foster childcare, b) an entomologist specializing in eco-friendly pest management for agricultural crops, and c) an employment training professional who is an expert in assisting U.S. military veterans. The following is a sample of additional occupations which have been approved for NIW classification:

• Sculling Coach
• Corporate President
• International Relations (North Korea)
• Investment Analyst
• Musician
• Agribusiness Entrepreneur
• Social Protection Specialist (supporting economies for developing nations)
• Software Developer (impacting U.S. economy, technology and security)

If the NIW category sounds applicable to you, contact our office for a consultation. We are dedicated to assisting leaders in their respective disciplines secure permanent residence and promoting the national interests of the United States.