National Interest Waiver Petitions

Introduction
A foreign national whose employment in the United States is in the national interest may self-petition for EB-2 classification. The National Interest Waiver is only available to foreign nationals who hold a United States advanced degree or a foreign equivalent degree of or a United States baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer(s) showing that the foreign national has at least five years of progressive post-baccalaureate experience in the specialty.

Our firm has successfully filed National Interest Waiver petitions on behalf of clients, examples of which can be viewed at our National Interest Waiver Success Stories page.

The Matter of Dhanasar Three-Part Test
In order to obtain a green card through a National Interest Waiver, a foreign national must establish that a discretionary waiver of the job offer and labor certification requirements is in the U.S. national interest pursuant to Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). This decision makes National Interest Waivers more broadly available to foreign nationals pursuing endeavors that would benefit the United States. Matter of Dhanasar vacates the framework set forth in Matter of New York State Department of Transportation (NYSDOT), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998).

Under the new test, in order to be granted a National Interest Waiver, the foreign national must meet all of the following criteria, under the preponderance of evidence (“more likely than not”) standard:

  1. The foreign national’s proposed endeavor has both substantial merit and national importance. A wide range of fields of endeavor may qualify, including business, entrepreneurialism, science, technology, culture, health, and education.
  2. The foreign national is well-positioned to advance the proposed endeavor. To determine whether the foreign national meets this requirement, USCIS will look to his or her education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor, and the interest of potential customers, users, investors or other relevant entities or individuals.
  3. On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category. To meet this requirement, USCIS will consider (among other factors) whether the U.S. would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available, and whether the national interest of the foreign national’s contributions is sufficiently urgent to warrant foregoing the labor certification process.

Comparing National Interest Waiver Petitions
Throughout the National Interest Waiver petition process, our immigration attorneys consider petitions filed on behalf of foreign nationals that USCIS has already approved or denied. National Interest Waiver approvals provide examples of the types of evidence that USCIS found to satisfy Dhanasar’s three-part test. When USCIS denies a foreign national’s petition and that denial is upheld by the Administrative Appeals Office, the published decisions from the Administrative Appeals Office can provide valuable guidance in their descriptions of how the foreign national’s evidence fell short of demonstrating that the foreign national merited a National Interest Waiver. Through extensive analysis and understanding of the types of evidence that have and have not satisfied the three-part Dhanasar test, our immigration attorneys can accurately assess the strength of a client’s case for submission of a National Interest Waiver and counsel a client on the evidence to be obtained.

National Interest Waiver Processing and Approval
After the foreign national files Form I-140 seeking a National Interest Waiver, USCIS takes several months to process the petition. Premium Processing is not available for National Interest Waivers.

As National Interest Waivers are only available for the employment-based second preference category, the priority date for these petitions is current so long as the foreign national is not a citizen of China or India. Therefore, immigrant visas are immediately available for foreign nationals with approved National Interest Waivers from all countries besides China and India, their spouses, and their children, permitting them to apply for permanent residence either simultaneously with the filing of the National Interest Waiver petition or upon the approval of the National Interest Waiver petition. Foreign nationals of China and India with approved National Interest Waivers, their spouses, and their children must wait until the EB-2 National Interest Waiver petition’s priority date becomes before applying for permanent residence. Pursuant to the 21st Century DOJ Appropriations Act, foreign nationals of China or India who are the beneficiaries of approved National Interest Waivers and who are currently present in the United States in H-1B nonimmigrant status may extend their H-1B status beyond that classification’s six-year limit in 3 year increments, thereby permitting such foreign nationals to remain in the United States in H-1B status while waiting for their National Interest Waiver priority date to become current.

Marco PignoneNIW – EB-1/NIW Knowledge Base