A National Interest Waiver (NIW) is an employment-based immigrant petition in the second preference category (EB-2). The NIW is unique amongst employment-based immigrant petitions in that the criteria for success are taken from a decision of the Administrative Appeals Office (Matter of Dhanasar ), rather than being outlined in federal regulations. Another characteristic of the NIW that is distinctive is the ability for applicants to self-file, without the need for a sponsoring employer. By filing an NIW, the applicant is asking USCIS to “waive” the requirement of a permanent job offer and, therefore, the arduous process of permanent labor certification.
How Should I prepare an NIW?
The arguments and evidence presented in an NIW petition will vary based on the expertise of the applicant and her/his area of work. The Matter of Dhanasar decision provides guidance on the kind of evidence that should be provided. Subsequent decisions by the AAO on the National Interest Waiver criteria and their implementation, although non-precedent, provide examples of the how the AAO believes the criteria should be implemented. This includes three other decisions issued by the AAO on the same day as Matter of Dhanasar: Matter of E-C-H, Matter of E-A-A-, and Matter of K-A-.
The NIW standard is discretionary, and the category has more flexibility than other comparable immigrant categories (EB-1A, EB-1B) and non-immigrant categories (O-1A, O-1B) with regards to the weight given to different types of evidence. Nonetheless, reviewing the regulatory criteria for those comparable categories, and the approach USCIS uses to evaluate evidence submitted to meet those criteria, may also be helpful when preparing an NIW.
Do I need to have a job offer?
It is not necessary for an NIW applicant to have a permanent job offer in the United States. This characteristic was not designed to facilitate applications from individuals unable to find employment, however. As the AAO discusses in Matter of Dhanasar, Congress recognized that the process of permanent labor certification may be impractical in some circumstances, and that there may be occasions where the benefits offered by the applicant outweigh the protection afforded to the U.S. labor market by that certification process. The first prong of the Matter of Dhanasar criteria requires the applicant show her/his proposed endeavor has substantial merit and national importance. Applicants must therefore think carefully about showing commitment to their field of expertise and demonstrating their planned contributions.
Can I Request Premium Processing?
Premium processing is not currently available for NIW petitions. A page indicating which applications can be submitted with premium processing is available here.
A note on the Matter of Dhanasar decision and the vacation of its predecessor Matter of New York State Department of Transportation, can be found here. The text of the AAO decision can be found here.
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Note: The information in this post is general in nature, does not represent legal advice, and should not be relied on to determine immigration strategy and/or prepare an immigration application for a U.S. government agency. Immigration law is a rapidly changing field and each case has its own facts that will determine the appropriate strategy.
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