National Interest Waiver of Job Offer: Understanding Eligibility and Requirements

Since 1990, the Immigration and Nationality Act (INA) has allowed individuals of exceptional ability to obtain a waiver of the job offer requirement if USCIS deems such a waiver to be in the "national interest." Subsequent amendments have extended this waiver to certain professionals as well. This waiver, known as the National Interest Waiver (NIW), applies to the second preference (EB-2) classification for advanced degree professionals and individuals of exceptional ability.

1. Overview of the National Interest Waiver

A petition for a National Interest Waiver does not need to be supported by a job offer, allowing the individual to self-petition. Additionally, the waiver of the job offer includes a waiver of the permanent labor certification requirement. However, the petition must include the employee-specific sections of a permanent labor certification (without DOL approval), such as Form ETA 750B or Form ETA 9089.

To establish eligibility, the petitioner must demonstrate the following:

• The individual qualifies either as a member of the professions holding an advanced degree or as a person of exceptional ability.
• The waiver of the job offer and permanent labor certification requirement is in the "national interest."

Meeting the qualifications for EB-2 classification does not automatically qualify an individual for the National Interest Waiver. The petitioner must demonstrate not only eligibility for the EB-2 classification but also that the waiver itself serves the national interest.

2. Criteria for National Interest Waiver

In the context of exceptional ability, the INA requires that petitions show the individual’s presence in the U.S. would substantially benefit the national economy, cultural or educational interests, or welfare. Even if exceptional ability is demonstrated, the petitioner must also prove the additional requirement of national interest.

While neither the INA nor regulations explicitly define "national interest," the burden is on the petitioner to establish this criterion. USCIS evaluates each petition on a case-by-case basis.

Three Prongs of National Interest Waiver Analysis

USCIS may grant a National Interest Waiver at its discretion if the petitioner meets the following three prongs:

• Substantial Merit and National Importance: The proposed endeavor must have both substantial merit and national importance.
• Well-Positioned to Advance: The individual must be well-positioned to advance the proposed endeavor.
• Beneficial to Waive Requirements: On balance, it must be beneficial to the U.S. to waive the job offer and permanent labor certification requirements.

3. Specific Guidance

Further details on the three prongs of analysis are provided below:

• Section 1: Overview of the three prongs.
• Section 2: Guidance for persons with advanced degrees in STEM fields.
• Section 3: Letters of support and other evidence from government and quasi-governmental entities.
• Section 4: Specific considerations for entrepreneurs.

4. Denial and Appeals

If a petition is denied because the petitioner has not demonstrated that the waiver is in the national interest, the decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider.

Understanding the intricacies of the National Interest Waiver can significantly impact the success of an application. Properly addressing the eligibility criteria and demonstrating national interest is crucial for obtaining a waiver.