person writing on clipboard Immigration AttorneyThe National Interest Waiver is a second employment preference immigrant visa petition that requires that the individual has “exceptional ability” and whose work is in the national interest of the United States. One of the advantages of this for individuals is that they can self-petition, but employers can also use it to retain their top talent.

EB-2 Visa National Interest Waiver Qualifications

Meeting the requirements for the EB-2 National Interest Waivers allows a person to avoid having an employer file a PERM application with the U.S. Department of Labor to test the labor market and demonstrate that there are no qualified and available workers. A person can file an NIW I-140 petition on her own, or an employer can file the petition on behalf of an employee.

There is no statutory definition of  “national interest.” Instead, the United States Citizenship and Immigration Services (USCIS) consider three factors when granting a national interest waiver:

The proposed endeavor has substantial merit and national importance.

The first provision requires an applicant to show not just the benefits of their position but of the wider contributions that they propose to make to the United States.

The applicant is well-positioned to advance the proposed endeavor.

The second provision considers whether the applicant is the most appropriate person to bring the work to fruition. The USCIS may consider the applicant’s education and skills, their past achievements and record of success in related efforts, their model or plan for activities related to the proposed endeavor, any patents, trademarks, or copyrights they developed, interest or support garnered from potential customers or investors, or evidence that the applicant’s work has greatly influenced the field of endeavor.

On balance, it would be beneficial to the United States to issue a waiver.

Finally, the USCIS will determine whether the applicant and their endeavor combined provide more of a benefit to the nation than the intended benefits of testing the U.S. market to find qualified and available U.S. workers via the PERM labor certification application process. In other words, the employment and potential impact of the applicant’s contributions would provide more of a benefit to the United States and its workers even if a similar domestic worker were available. The USCIS may consider whether the national interest in the person’s contributions is sufficiently urgent (such as a public health or safety crisis or national competitiveness in STEM occupations) or whether the person’s endeavor could offset the waiver by creating future jobs.

Filing and Documenting That a Person Is One of Exceptional Ability and Whose Work Is in the National Interest

Whether self-petitioning or the recipient of an I-140 petition being filed by an employer, the EB-2 National Interest Waiver petition must include:

  • Two copies of the employee-specific portions of a permanent labor certification (without DOL approval) using either Form ETA 750B or Form ETA 9089
  • Evidence of an Advanced Degree or Exceptional Ability in the arts, sciences, education, or business reflecting expertise significantly above the ordinary
  • Extensive documentation and evidence showing that the applicant’s work will be in the national interest of the United States

If the petition is approved, the applicant’s spouse and unmarried children under the age of 21 may also apply for admission to the United States with E-21 and E-22 immigrant status.

Are You an Employer Seeking Legal Immigration Help to Retain Your Foreign Talent?

If you are an employer seeking legal immigration help to retain your foreign employees you should speak with an experienced immigration attorney as soon as possible. We have been helping employers with the immigration process related to their employees since 1993 and always work towards exceeding expectations. Please contact us online or call our office directly at 202.537.4830 to discuss your specific business immigration legal needs. We service clients throughout the United States from our Bethesda, Maryland office and look forward to working with you.