National Interest Waivers (NIW)

• National Interest Waivers
• Who qualifies?
• What are the filing procedures?
• How long does the process take?
• What are the advantages of a national interest waiver?
• What are the disadvantages compared to other options?
• Immigration Assistance

 

National Interest Waivers

The "national interest waiver" (NIW) is an achievement-based opportunity for a green card.  This waiver is available if you are doing work that is in the national interest and you have a very good past record of achievement in your field. The NIW category is typically used by postdocs and Ph.D. students, but can also be used by other researchers, artists, business people, and others.

One of the key decisions by the Board of Immigration Appeals on the standards for National Interest Waiver cases is New York State Department of Transportation.  This case provides the test that applicants must meet to qualify for a green card in this category.

Qualifications for National Interest Waivers

The threshold requirement for a national interest waiver is a master's degree or "exceptional ability" in your field.

The main requirement is a three-part test.  You must meet all three parts to qualify for a national interest waiver:

• What you do must be of "substantial intrinsic merit";
• The benefits of your work must be "national in scope" (as opposed to being purely "local"); and,
• You must establish that your past record of achievement demonstrates that you can benefit the national interest to a "substantially greater degree than would an available U.S. worker having the same minimum qualifications."

Advantages of National Interest Waivers

The national interest waiver has the following advantages over the traditional labor certification route to a green card:

• Does not require a labor certification.
• Does not require a permanent job offer in the United States.
• Faster than the labor certification process. You can take advantage of concurrent filing and obtain work authorization  and an advance parole document (allowing you to travel internationally) much sooner than with labor certification.  You may also obtain work and travel authorization for your spouse and children.
• More flexible than the labor certification process. Compared to the labor certification process, you can change jobs much sooner and can change to a much broader range of job opportunities.
• You can self-petition. That is, the petition does not require the signature of anyone at the university or company where you work. In fact, in some cases, you can even be self-employed.

Over the years, Peng & Weber has successfully obtained hundreds of national interest waivers for professors, postdocs, Ph.D. students, industry researchers, professional dancers, Chinese medicine experts, business people, and artists.  Some of these clients did not have a permanent job offer with a U.S. employer. We have represented NIW petitioners from throughout the United States.

Disadvantages Compared to Other Options

There are some disadvantages to the national interest waiver, compared to the labor certification process.  You have to be very good -- not just someone with "good grades," not just someone who happens to be working on some major federally funded project (no matter how important that project may seem). That is, not everyone qualifies.

The national interest waiver can also be less predictable than the labor certification process -- especially if you file on your own or obtain help from someone who is not experienced with this specialized area of immigration law.

Filing Procedures

To obtain a national interest waiver, you must file a Form I-140 petition, Form ETA 750B, and supporting documents directly with the appropriate Immigration Service Center. You do not have to file anything with the Department of Labor.  You may also file your permanent residency application at the same time as your I-140 Petition, and receive work and travel authorization.

Processing Times

Processing times for national interest waivers depends on the case load at the Immigration Service Center, which can vary greatly over time.  Current processing times are estimated by all of the Service Centers, but those are just estimates.

Immigration Assistance

If you would like our assistance in preparing your permanent residency petition, please contact Peng & Weber for a free evaluation or consultation.