FAQs
GENERAL QUESTIONS RELATING TO NIW
One of the ways to live and work permanently in the United States is by seeking an employment-based immigrant visa. Some immigrant visa preferences require one to already have a job offer from a U.S. employer, who is considered the person’s Sponsor. For some visa categories, before the U.S. employer can submit an immigration petition to USCIS, the employer must obtain an approved Labor Certification from the U.S. Department of Labor (DOL).
The National Interest Waiver (NIW) is a request that the job offer, and thus the labor certification, be waived because it is in the interest of the United States. It is an exemption from the labor certification process and job offer requirement for advanced degree/exceptional ability workers applying for an EB-2 Visa for Immigration into the United States.
Under this special provision, qualified professionals who can demonstrate that their work is in the national interest of the United States, get an exemption from the labor certification process and job offer requirement.
The NIW is supported by the following Regulations:
1. Section 203(b)2(B)(i) of the Immigration and Nationality (INA) Act
2. 8 Code of Federal Regulations (CFR) S.204(5)(k)2
QUESTIONS RELATING TO ELIGIBILITY
Professionals that qualify for the national interest waiver category are those with advanced degrees or exceptional abilities in the arts, sciences, or business.- Section 203(2)(A) of the Immigration and Nationality Act
A professional in the science, arts, or business who has any of the following academic qualifications:
A U.S. Master's Degree or higher (M.Sc., M.A., Ph.D., MBA, MD/MBSS) or
A Foreign degree evaluated to be the equivalent of a U.S. Master’s degree or higher;
A Bachelor's Degree obtained in the U.S. or its foreign equivalent, combined with at least 5 years of working experience in the Field.
An applicant holding a foreign Master's Degree or higher is advised to submit transcripts to U.S assessment bodies to determine that the foreign degree is an equivalent of a Master's Degree or higher.
You do not need a PH.D. to apply for an NIW. One of the criteria for qualification for an NIW is to have an Advanced degree. However, if your specialty is one in which a doctoral degree (Ph.D.) is customarily required, then it is compulsory to have a Ph.D.
If an applicant seeks to apply for NIW under the Exceptional ability category, he or she does not need to have a Ph.D., as long as they can satisfy the criteria stipulated by the Law for this categorization.
An applicant is required to prove that he/she has over 5 years of progressive working experience in the field post-graduation. He/She may provide a letter of employment, Letter of Recommendation from former colleagues and former employers attesting to the Applicants working experience.
To qualify as a Professional having exceptional abilities, the applicant is required to demonstrate that:
He or she has exceptional ability in the sciences, arts, or business;
He or she will substantially benefit the national economy, cultural or educational interests, or welfare of the United States in the future; and
His or her services in one of those fields are sought by an employer in the United States or A National interest Waiver Application.
The regulations require an Applicant to meet at least 3 out of the following regulatory criteria:
An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
Evidence in the form of a letter(s) from current or former employer(s) showing that the beneficiary has at least 10 years of full-time experience in the occupation in which he or she is being sought;
A license to practice the profession or certification for a particular profession or occupation;
Evidence that the beneficiary has commanded a salary or other remuneration for services that demonstrates the exceptional ability. (To satisfy this criterion, the evidence must show that the beneficiary has commanded a salary or remuneration for services that is indicative of his or her claimed exceptional ability relative to others working in the field);
Evidence of membership in professional associations; and
Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
An applicant for NIW does not need to be inside the U.S.A. to apply. A Foreign National can apply from his or her home country.
Professionals with Advanced degrees or Exceptional ability in the Sciences, Arts, and Business may qualify for NIW if they possess the requisite qualifications. You do not need to be in the STEM profession to apply. Whichever profession or field of endeavor you're one is engaged in, what you need to demonstrate is that your proposed endeavor will benefit the United States in a variety of ways ranging from Science, technology, entrepreneurship, culture, health, business, or education.
Professionals with Advanced degrees or Exceptional ability in the Sciences, Arts, and Business may qualify for NIW if they possess the requisite qualifications. You do not need to be in the STEM profession to apply. Whichever profession or field of endeavor you're one is engaged in, what you need to demonstrate is that your proposed endeavor will benefit the United States in a variety of ways ranging from Science, technology, entrepreneurship, culture, health, business, or education.
Yes, you can. Any student who possesses the necessary qualifications may apply for an NIW. The requirements to be eligible for NIW are:
Advanced degree Professionals (any U.S. degree above a U.S. baccalaureate or its foreign equivalent, or
a U.S. baccalaureate degree plus 5 years post-graduate work experience in that field of endeavor, or Professionals with Exceptional ability.)
⦁ The United States seeks to attract global talents, especially in the STEM fields. Professionals in Science, Technology, Education, and Mathematics (STEM) have a great chance of approval if such a person can prove an advanced degree, exceptional ability, and the 3-prong test.
⦁ In January 2022, USCIS updated its Policy Manual, placing emphasis on STEM graduates/professionals in the STEM fields seeking national interest waiver.
Our office hours are Monday - Friday from 9:00am–6:00pm Eastern Time. Our office is closed on Saturday and Sunday.
QUESTIONS ON NATIONAL INTEREST WAIVER OF JOB OFFER AND LABOR CERTIFICATION
To obtain an NIW, you do not need an offer of employment. A national interest waiver is essentially a waiver of the requirement of securing a job offer and a labor certification in the U.S.
A labor certification is a process that an employer has to go through in hiring a foreign national for a job position by proving that there are no qualified US workers for that particular position. Under the EB-2 NIW category, this process is waived for an applicant if he or she successfully proves eligibility.
To successfully prove that an Applicant's endeavor is in the National Interest of the U.S. The endeavor must meet the 3 prong test:
The endeavor must have substantial merit and national importance
The Applicant must be well positioned to achieve his endeavor through his current work done
On a balance, the totality of the evidence establishes that it would be beneficial to waive the requirement of a Job offer and Labor certification.
i. that the proposed endeavor has substantial merit and national importance: Here, USCIS is interested in the specific endeavor of the applicant as pertaining to what benefits it holds for the United States. The focus is not on the general occupation, field, or industry of the applicant, but on the particular endeavor within that field that the applicant intends to work in the U.S.
An applicant has to show that his or her proposed endeavor has substantial merit. Substantial merit may be demonstrated in a wide range of areas such as arts, business, health, entrepreneurialism, technology, science, and so forth. To show substantial merit is to explain why such endeavor is one that is of commendable quality, has worth, or is of superior quality. Further, demonstrating the national importance of an endeavor is explaining the various ways an endeavor has great significance or value to the U.S or simply the value of the endeavor to the U.S (economic impact, impact, technological advancement, boosting U.S. competitiveness in such a field, etc.)
ii. that the petitioner is well positioned to advance the proposed endeavor:
To establish the second prong, an applicant has to demonstrate that he or she has a strong standing in his or her field and can be reasonably expected to continue their work successfully in the United States. An applicant does this, by furnishing evidence to show that by his education, skills, experience, track record, professional associations, network, previous work, etc., is in a good or advantaged position to achieve or fulfill the endeavor he or she has proposed to undertake in the U.S.
iii. That the factors in favor of granting the waiver outweigh those that support the requirement of the job offer, and thus labor certification: in proving the third prong, an applicant has to show that granting a waiver to him or she outweighs the benefits inherent in the labor certification process. This means that, after proving the first and second prong, the applicant has to show how, in an overall way, it can be reasonably surmised to say that the U.S. will stand to benefit more from his proposed contributions by waiving the job offer requirement.
An Applicant must put together a highly persuasive case to Show that He or She Qualifies for a National Interest Waiver. Documents To Establish eligibility and support your case include:
Evidence of Degrees, Advanced Degrees, or Exceptional Ability
Letters of Recommendation
Evidence of Past Achievements, Leadership positions.
Evidence of Membership in Professional Associations
Publications, Citations, or Recognition by an applicant in his or her Field of Endeavor
Fully Updated Resume of an applicant
A highly persuasive NIW Petition Drafted by an Attorney
No, you do not need to be sponsored by an Employer in the U.S. A NIW applicant may self-petition to the USCIS to be granted an NIW under the EB-2 category.
If you do not have any published works or research papers, you can still apply. What is required and important is your ability to demonstrate that aside from possessing the requisite academic qualifications, your qualifications, your proposed endeavor stands to benefit the United States in diverse ways. However, having published works in your field could make your NIW application stronger.
There is no required number of publications/citations for an NIW application, which would guarantee approval by USCIS. However, where applicable, an applicant may furnish as many publications/citations to show their influence in their field of endeavor.
QUESTIONS ON LETTERS OF RECOMMENDATIONS
An NIW application with a high chance of success will require solid strong recommendation letters. While there is no particular number of recommenders needed, an applicant should seek to secure Top Experts in his or her field of endeavor or industry that can attest to the applicant’s abilities
and explain why they believe the applicant deserves to be granted a National Interest Waiver
A fundamental aspect of an NIW application is the ability to secure good recommenders to support your application. Your recommenders can be any Professional or industry expert in any field of endeavor.
However, in securing a strong recommendation, you should get colleagues, peers, or experts in your field of endeavor that you have worked with, have supervised your work, or utilized your research. More weight is attached to letters of recommendation obtained from independent peers or Experts in your field of endeavor.
Your Letter of recommendation plays a vital and important role in your NIW application. A good letter of recommendation should be a discussion of your abilities, talents, competencies, accomplishments/contributions to your field, and how important your endeavor is in the furtherance of the national interests of the United States.
Experts such as NIW Recommenders must not be American citizens only. Experts can be from any part of the world, as long as they are people that can attest to your skills or competencies.
Experts must not be residents of the United States. Experts can be professionals from any part of the world who are outstanding in their field or industry.
All NIW Letters of Recommendation must be addressed to the Director, United States Citizenship and Immigration Services (USCIS).
Letters of Recommendation have better credence if they are prepared on the Letter headed paper of the Expert’s organization, and duly signed. An online copy of such a letter in the proper format, and duly signed will suffice.
QUESTIONS ON THE APPLICANT’S FAMILY
Once your National Interest Waiver Application is approved, your family can immigrate with you to the United States.
Once your application has been approved you would now be entitled to process your green card application for yourself, your spouse, and your children. If you are within the U.S you may apply for an adjustment of status for yourself and your family in the U.S
If you are outside the U.S or your family is outside the U.S, an application for a green card would be made through Consular processing.
OTHER RELEVANT QUESTIONS
The NIW application process time is between 6 - 24 months. Due to the backlog as a result of the COVID-19 pandemic, it is possible for the application to take longer than the stipulated time.
If you become out of status while your application is processing, you would not be required to leave the U.S pending the outcome of your application if you submitted a Green card application.
Yes, you can apply for work authorization or an extension of your current work authorization for the processing period of your Application.
Yes, you can travel out of the U.S for visits, business, or other temporary purposes. However, you must notify the USCIS of your trip by filing FORM I-131; Application for Travel Document.
A national interest waiver holds several benefits for a successful applicant. Some of such benefits are:
You can self-petition under the EB-2 NIW category. You do not need a Sponsor(an Employer or family relative) to petition for your green card.
You do not need to go through the Labor Certification process; the labor certification process is rigorous and takes a lot of time to obtain a PERM certification from the Department of Labor, and get a job offer. When you petition under the EB-2 NIW category, you are requesting a waiver of the labor certification.
Processing time for NIW applications is faster: USCIS processing time for NIW applications is faster. NIW applications may take a period of – months,
There is no published official report on NIW applications by USCIS. Every NIW petition is decided by USCIS on its merits. However, a strong petition will have a good likelihood of approval.
Yes, you can. Filing an EB-2 NIW application does not prevent a foreign national from filing under other immigration categories he or she is eligible for.
Yes, you can file an NIW application by yourself. It is however advisable to engage the services of an Immigration Lawyer who has the right experience and knowledge of the law to have a higher chance of success.
While considering your application, an officer may issue an RFE requesting further evidence. This means that the officer has considered your allocation and requires clarity in highlighted areas. Depending on the areas highlighted in the RFE you may use an RFE as an opportunity to present a clearer and stronger case.
In some cases, this may be the last opportunity to recalibrate your case before a final decision. It is therefore advisable to seek professional help from an Immigration Attorney if you receive a Request For Evidence (RFE).
Yes. An applicant can reapply under an NIW category or other categories. If your application is denied by USCIS, you have the opportunity to file an appeal to the Administrative Appeals Office (AAO), refile another application, or file under any other immigration category that you qualify for.
Yes, you are required to undergo a medical examination at USCIS-designated healthcare centers. This can be found on the USCIS website.
QUESTIONS ON FEES
The Official Filing Fees for an NIW Application are as follows:
⦁ Filing Form I-140 Petition for Alien Worker: $700
⦁ I-485 Application to Register Permanent Residence or Adjust Status: $1,140 plus biometrics fees of $85.
QUESTIONS ON
NIW FILING
⦁ Concurrent filing is simply filling your I-140 Immigrant Petition together with your 1-485 Application to register permanent residence or adjust status. However, to file concurrently, your EB-2 Priority date must be current.
⦁ If a visa number is immediately available upon approval, as shown on the Department of State's most recent visa bulletin, you may also apply for a Green Card at the same time if you are in the U.S., through the process known as adjustment of status.
⦁ You'll want to think carefully about submitting an adjustment application together with the NIW petition because if USCIS denies the NIW, the adjustment application no longer has a supporting petition and therefore will be denied too. Because there is substantial discretion involved in the NIW petition, the conservative approach is to obtain the NIW approval before submitting an adjustment application.
⦁ If a visa number is not immediately available, you will have to wait until the priority date (the date the I-140 is submitted) is reached.
You can concurrently file your I-140 and I-485 Application, but you must understand and take into account the risks. The main risk is that your I-140 may be denied, in which case your I-485 (and I-131 and I-765) will be denied. It is advisable to discuss with Immigration Attorney to know the appropriate course of action.
When you file your NIW Application and your I-485 Application to register permanent residence or adjust your status separately.
There are two USCIS offices that receive all NIW Applications: The USCIS, Vermont Service Center and the USCIS, Nebraska Service Center. Your NIW Application will be submitted where your State is closest to.
Upon approval of your NIW, your Green Card processing time typically takes a period of 3-6 months. However, the duration of processing your Green Card is largely dependent on the assigned USCIS Service Center and the adjudicating officer.
Yes, an Applicant has to continue in his or her area of endeavor after his or her Green Card has been approved.
Premium Processing Service is an opportunity for the employer or the beneficiary to request faster processing of certain employment-based petitions and applications to meet the employer's need to hire foreign workers. The Premium Processing fee is $1,000, which is in addition to the regular filing fees that must be paid to the Service for the filing of certain petitions and applications.
Premium processing is possible to enable one fast-track your NIW Application process. However, one should proceed with caution because documents are voluminous, and it is necessary for the USCIS Officer to have adequate time to process the application
QUESTIONS ON
STEM FIELDS
⦁ The United States seeks to attract global talents, especially in the STEM fields. Professionals in Science, Technology, Education, and Mathematics (STEM) have a great chance of approval if such a person can prove an advanced degree, exceptional ability, and the 3-prong test.
⦁ In January 2022, USCIS updated its Policy Manual, placing emphasis on STEM graduates/professionals in the STEM fields seeking national interest waiver.
Our office hours are Monday - Friday from 9:00am–6:00pm Eastern Time. Our office is closed on Saturday and Sunday.
QUESTIONS ON
NIW APPEAL
When your NIW Application is denied, you have two options: You may either reapply (submit another national interest waiver application) or appeal (Appeal to the Board of Immigration Appeals Office). You are advised to secure an Immigration Attorney to seek legal advice on why the case was denied, to know the more appropriate course of action to take
This depends on your current immigration status and the reason for the denial of your case. If you are still in lawful status, you may reapply. If you are not in a status, you may appeal. You are advised to secure an Immigration Attorney for legal advice on how to proceed with your case.