National Interest Waivers
In general, the EB-2 visa applicant needs to obtain a PERM labor certification from the DOL. However, the PERM labor certification process can be avoided by presenting evidence to USCIS to establish that the foreign national should be granted a National Interest Waiver (NIW) which waives the labor certification requirement. Another advantage of the National Interest Waiver (NIW) process allows a foreign national applicant to “self-petition,” and file the FORM I-140 without the involvement of an employer.
The successful NIW applicant must show that their entry to the country would greatly benefit the country and also demonstrate evidence of at least three (3) of the following:
- 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 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or 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
On December 27th, 2016, the Administrative Appeals Office (AAO) issued Matter of Dhanasar and provided additional guidance for NIW applicants.
EB-2 National Interest Waiver Requirements (AAO):
- The first requirement is that the alien must show that his/her proposed endeavor is considered to have substantial merit and national importance. This merit can be shown through areas like business, science, technology, health, culture, or education. There does not need to be quantifiable evidence of economic impact, though it may help your case.
- The second requirement is that the foreign national must be able to advance the proposed endeavor. This means that the AAO will look at factors such as the alien’s educational background, experience, relevant skills, a record of similar successes, current progress, and having a plan for success.
- The final requirement is that the applicant must present evidence that the U.S. would benefit on balance to waive the job offer criteria for an EB-2. “On balance” simply means that the advantages of waiving the job offer requirement outweigh the advantages of not waiving it.
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