In most cases, when petitioning for an employment-based visa, the petitioner must have a job offer or is currently working for a US-based company. To waive that requirement, the petitioner can apply for a national interest waiver, a type of special permission to seek employment based on the petitioner’s skills and expertise being in the “national interest” of the United States.
Areas of expertise in business, arts, athletics, science, engineering, and medicine are often considered eligible for the waiver. Especially during the COVID-19 pandemic, experts in various fields and industries have become essential for reversing the devastating effects on the US economy and the American people.
What is a national interest waiver?
A national interest waiver is another method to obtain a legal permanent resident status or green card status in the United States. It is a subset of the EB-2 employment-based category for obtaining a green card. With the waiver, you are requesting that the permanent labor certification requirement (PERM) be waived because it is in the interest of the United States. Those who qualify for a national interest waiver have skills or expertise that benefit the United States economy, education system, health care system, or some other aspect of society.
According to the US Citizenship and Immigration Services (USCIS), the criteria for a national interest waiver includes:
- Proof of an advanced degree or exceptional ability
- The proposed endeavor has both substantial merit and national importance
- The petitioner is well-positioned to advance the proposed endeavor
- It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification
The advantages of a national interest waiver
The national interest waiver has no legal definition or statute, leaving it to the USCIS officer’s discretion. However, there are several advantages to applying.
1. Employer sponsorship is not required
You may self-petition and apply directly to the USCIS with your Form I-140 without needing an employer to sponsor you.
2. PERM labor certification is not required
Unlike most employment-based green card processes, you do not need to file a labor certification. This avoids the process of an employer providing proof that there are not sufficient US workers able, willing, and qualified to accept a job opportunity for which you would be qualified.
3. No need to prove extraordinary ability
Unlike the criteria for an EB-1 category, you do not have to prove extraordinary ability if you can prove you have an advanced degree. As a result, USCIS approval rates are generally higher for green card applications with national interest waivers than EB-1A petitions.
Eligibility criteria to apply for a national interest waiver
As discussed previously, to apply for a national interest waiver, you must be able to prove:
- You have an advanced degree or exceptional ability
- Your proposed endeavor has both substantial merit and national importance
- You are well-positioned to advance the proposed endeavor
- It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification
The goal of the 4-part criteria is to ensure that American jobs are protected. Your endeavor must be beneficial enough to the United States that it warrants waiving the PERM labor certification policy that is put into place to mitigate job outsourcing. You must be able to prove to USCIS that the impact of your endeavor outweighs the benefits of PERM.
To further explain, we’ll break down each of the criteria:
You have an advanced degree or exceptional ability
You must provide evidence of an advanced degree, according to USCIS, “Documentation, such as an official academic record showing that you have a US advanced degree or a foreign equivalent degree, or an official academic record showing that you have a US baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least five years of progressive post-baccalaureate work experience in the specialty. In addition, if a doctoral degree is customarily required, you must have a United States doctorate or foreign equivalent degree.”
Without evidence of an advanced degree, then you must be able to prove exceptional ability. Criteria of exceptional ability include:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least ten years of full-time experience in your occupation
- A license to practice your profession or certification for your occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable
Applicants must be able to prove at least three of the criteria for exceptional ability.
Your proposed endeavor has both substantial merit and national importance
Substantial merit has been defined in the case, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) and is demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. Moreover, the endeavor does not have to result in economic benefits to the United States to qualify.
To establish substantial merit, the petitioner must provide, but is not limited to, the following:
- A detailed description of the proposed endeavor and why it is of substantial merit; and
- Documentary evidence that supports the petitioner’s statements and establishes the endeavor’s merit
To establish proof of national importance, the potential prospective impact must be considered, and evidence must be provided, but not limited to:
- A detailed description of the proposed endeavor and why it is of national importance
- Documentary evidence that supports the petitioner’s statements and establishes the endeavor’s national importance. Such evidence must demonstrate the endeavor’s prospective impact and may consist of, but is not limited to, evidence that shows the proposed endeavor
- Proof of national or even global implications within a particular field
- Evidence of significant potential to employ US workers or other substantial positive economic effects, particularly in an economically depressed area
You are well-positioned to advance the proposed endeavor
You must submit evidence to establish that you are well-positioned to advance the proposed endeavor. This generally can be proven by evidence relating to your education, experience, knowledge, skills, and past success. Evidence to support your claim may include:
- Letters of recommendation from employers or highly-regarded experts in your field
- Documentation of your licensing or certifications
- Proof of an exceptional salary that relates to your skills
- Association memberships that require exceptional ability for eligibility
It would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification
This last requirement is your opportunity to prove that the United States will benefit more by waiving the PERM requirement than enforcing it. You must verify that you are uniquely qualified to perform your work, and providing a labor certificate would impede your ability to perform your work. One way to prove this is to provide evidence that your work is time-sensitive, or:
- Proof that it would be impractical to secure a job offer in light of the nature of your proposed endeavor, such as an entrepreneurial venture
- Evidence that even if there are qualified US workers in your field, the US would still benefit from your skills
How to apply for a visa with a national interest waiver
Applicants eligible for a national interest waiver can apply for a second preference EB-2 visa. Requirements for filing an EB-2 visa petition, in addition to a national interest waiver or a PERM labor certification, include an I-140 Immigrant Petition and an I-485 Adjustment of Status application. Depending on your situation, you could file all documents concurrently or separately.
To file concurrently, your EB-2 priority date must be current. As of October 2021, applicants from China and India are prohibited from concurrent filing. For a list of priority dates, visit the USCIS Visa Bulletin. If you choose to file separately because of concerns your national interest waiver may be denied, you must wait for your I-140 and national interest waiver to be approved before filing your I-485.
The processing time for filing an EB-2 with a national interest waiver is typically three to nine months. However, this time is greatly influenced by the assigned USCIS Service Center’s backlog and the officer reviewing your application and supporting evidence. Therefore, premium processing is not available for petitions with national interest waivers.
Requests of Evidence (RFE) for national interest waivers
Visa petitions with national interest waivers may be denied or delayed because of Requests of Evidence or RFEs. If you receive an RFE, the best action plan is to consult a reputable immigration lawyer who can provide insights and develop your next steps to increase your chances of approval.
An RFE typically allows for 30 to 90 days to respond, and you will only have one chance to respond with more evidence. If further evidence is needed after you respond to an RFE, your application will be denied. Common requests for evidence for national interest waivers include further proof that:
- Your work will benefit national interest. This could be in the form of additional letters of recommendation or a stronger petition letter.
- Your work will have a sustainable impact in your field. Providing more detailed letters from authors of higher prestige and quality can help demonstrate the value of your contributions.
- You will be more beneficial to the US than an American worker. You must prove that you are uniquely qualified to do your work. The supporting evidence you supply must consider the scope of immigration law and prove without a doubt that your contributions will balance the loss of employment for an American worker.
Choosing a national interest waiver instead of PERM labor certification may enable you to expedite the visa approval process. However, USCIS requires much documentation and evidence to show that your skills are of national interest. With the help of a reputable immigration lawyer knowledgeable in employment-based visas, you will have the best chance to develop a solid case for the waiver petition while minimizing the chances of an RFE or denial.
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