EB-2 National Interest Waiver
In most cases, before an employer can sponsor a foreign national employee for a green card, the employer is required to conduct a labor market test (a process known as labor certification, or the PERM process) to prove that there are insufficient U.S. workers who are qualified and available to perform the sponsored position. Not only is this preliminary requirement expensive, but it can also delay the filing of an immigrant petition by 18+ months based on current processing times. Fortunately, many foreign national professionals are eligible to apply in the National Interest Waiver (NIW) category, which waives the normal labor certification requirement and can thus significantly accelerate the overall green card process.
What are the benefits of NIW?
NIW waives the Labor Certification requirement
The major benefit of the NIW category is that it waives the normal labor certification requirement, allowing for the immediate filing of an immigrant petition. For applicants who do not already have a priority date from a previous immigrant petition, the NIW makes it possible to secure a priority date earlier than would otherwise be possible, which can accelerate the overall green card process. By waiving the labor certification requirement, the NIW also makes it possible to secure an I-140 approval much faster than would otherwise be possible, which can facilitate extensions of H-1B nonimmigrant status beyond the normal 6-year limit and make it possible for H-4 spouses to apply for work authorization in the U.S.
NIW enables self-sponsorship
While most employment-based immigration matters require the sponsorship of an employer, the NIW is one of the few categories that allows for self-sponsorship. Sometimes an individual’s employer does not sponsor green cards or has certain conditions for green card sponsorship, such as requiring a year or more of employment or requiring sponsorship based on the more time-consuming PERM-based process. In these situations, the NIW provides the individual an opportunity to apply on their own terms. The NIW also provides a path to permanent residency for individuals who do not yet have a U.S. employer or who are self-employed.
NIW is not tied to a specific job offer
Employment-based immigrant petitions are normally tied to a specific position and employer, which means that if an individual changes positions or employers after the petition is filed, a new petition may be required before they can apply for a green card. The NIW waives the job offer requirement and is not tied to any specific position or employer, and an NIW petition approval remains valid despite changes to the individual’s employment conditions or status.
NIW provides a priority date in the EB-2 category
When an immigrant petition is based on a labor certification application, the determination as to whether it falls in the employment-based second preference category (EB-2) vs. the third preference category (EB-3) is dictated by the minimum requirements of the sponsored position—not by the individual’s personal qualifications. Accordingly, even if an individual personally meets the advanced degree requirement for EB-2, their petition may be filed in EB-3 based on the requirements for their position. The NIW only exists in the EB-2 category, and it allows individuals who may otherwise only be sponsored in EB-3 due to their position’s minimum requirements to obtain an approval in the EB-2 category based on their personal qualifications. Historically, it is typically faster to secure a green card in the EB-2 category than the EB-3 category.
NIW is relatively accessible for many professionals
NIW is not the only employment-based green card category that waives the labor certification requirement. Individuals who qualify for sponsorship in the EB-1 category as individuals of extraordinary ability, outstanding researchers, or multinational managers also bypass the PERM requirement. However, the EB-1 category is restricted to a relatively small percentage of green card applicants who meet the lofty requirements of a multinational manager or who have achieved levels of recognition and accomplishment that place them at the top of their field. In contrast, the NIW focuses primarily on the importance of the applicant’s work rather than on their recognition for extraordinary achievements, and it is thus a viable option for a much larger population of applicants.
What are the requirements for NIW?
As a threshold matter, any individual applying in the EB-2 category (whether requesting a National Interest Waiver or applying based on labor certification) must either meet the advanced degree requirement or qualify as an individual of exceptional ability. Assuming this threshold requirement is met, a three-pronged approach is then used to determine eligibility for a National Interest Waiver.
Advanced degree or exceptional ability
To meet the threshold advanced degree requirement, an individual must possess an advanced degree or the foreign equivalent, OR a bachelor’s degree or the foreign equivalent and at least 5 years of post-bachelor’s experience. To meet this requirement, additional experience cannot be considered in lieu of the degree.
Where an individual does not meet the advanced degree requirement, they may still qualify to apply in the EB-2 category if they have evidence of at least 3 of the following criteria to qualify as an individual of exceptional ability:
A degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning related to the field of endeavor
Letters from current or former employers documenting at least 10 years of full-time experience
A professional license or certification to practice in the field of endeavor
Evidence that the individual commands a high salary
Evidence of membership in a professional association(s)
Evidence of recognition for achievements and significant contributions to the field of endeavor by peers, government entities, and/or professional or business organizations
National Interest Waiver analysis
After establishing that an individual meets the advanced degree or exceptional ability threshold, it is then necessary to establish by a preponderance of the evidence that the individual will perform an endeavor in the U.S. that has substantial merit and national importance, that the individual is well positioned to advance that endeavor, and that, on balance, it would be beneficial to the U.S. to waive the normal labor certification requirement.
Endeavor of Substantial Merit and National Importance
The first step in establishing this prong is defining the proposed endeavor, which should be more specific than a general occupation and which should detail the specific projects and goals associated with the individual’s work in the U.S.
Substantial merit can be established by showing that the endeavor has practical benefits in areas such as business, entrepreneurship, science, technology, culture health, or education.
National importance can be established by explaining how the endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment or has the potential to contribute to the advancement technology or a particular field of study.
Importantly, the U.S. Citizenship and Immigration Service (USCIS) states: “USCIS recognized the importance of progress in STEM fields and the essential role of persons with advanced STEM degrees in fostering this progress, especially in focused critical and emerging technologies or other STEM areas important to U.S. competitiveness or national security.”
The National Science and Technology Council has defined critical and emerging technologies to include advanced computing, advanced engineering materials, advanced gas turbine engine technologies, advanced and networked sensing and signature management, advanced manufacturing, artificial intelligence, biotechnologies, clean energy generation and storage, data privacy and cybersecurity, directed energy, autonomous and robotics systems, human-machine interfaces, hypersonics, integrated communication and networking technologies, positioning and navigation technologies, quantum information and enabling technologies, semiconductors and microelectronics, and space technologies and systems. Accordingly, any endeavor related to advancing progress in these areas could have a strong argument for national importance.
Well Positioned to Advance the Proposed Endeavor
That an individual is well positioned to advance their proposed endeavor can be established by outlining their relevant education, skills, and knowledge; detailing their plan for playing a significant role in the proposed endeavor; describing any progress made previously toward achieving the proposed endeavor; and evidencing the interest or support of customers, users, investors, government entities, or others who may benefit from the proposed endeavor. In many cases, if an individual possesses relevant education and is already employed with a prominent organization in their field of endeavor, this may be sufficient to demonstrate that they are well positioned to make significant contributions going forward.
Beneficial to Waive the Labor Certification Requirement
The normal labor certification requirement is intended to protect the job opportunities, wages, and working conditions of U.S. workers. The third prong of the NIW analysis requires showing that the benefits of the proposed endeavor outweigh this interest in protecting U.S. workers. Assuming it has been established that the endeavor will serve national interests and the individual is well positioned to advance the endeavor, there is usually a strong argument that the benefits weigh in favor of waiving the labor certification requirement. However, additional factors that play into consideration include the impracticality of a labor certification application (for example, cases of self-employed individuals who cannot file a PERM application on their own behalf), the urgency of the proposed endeavor, and the potential of the proposed endeavor to generate considerable revenue or create new jobs.
Conclusion
The normal PERM labor certification process for employment-based green cards continues to become an increasingly impractical option due to unreasonable processing times and the fact that the process can be derailed by layoffs, job changes, and other factors that become more prevalent during times of economic volatility. The NIW route offers an attractive alternative to the labor certification process, as it offers many benefits and is attainable for a large population of foreign national professionals in the U.S. If you are interested in exploring how the NIW option may benefit you, schedule a free consultation today.
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