What to Know about an NIW petition

November 08, 2021
Courtney Wachal

A National Interest Waiver (NIW) is a sub-category of the employment based second preference (EB-2) classification for an immigrant petition. The purpose of an NIW petition is to allow an individual the opportunity to obtain a green card without needing a labor certification from the Department of Labor and sponsorship from a U.S. employer. Because the NIW does not require a labor certification, it can be self-petitioned and does not require a job offer. Please note however that premium processing is not yet available for NIW petitions.

Am I Eligible?

First, you must meet one of the following requirements of the EB-2 classification:

  • Provide evidence of an advanced degree
  • Show that you have exceptional ability in the sciences, arts or business

Second, you need to demonstrate that you meet the criteria to receive an NIW.  To demonstrate this, you must prove the following:

  • Your proposed endeavor has both substantial merit and national importance;
  • You are well-positioned to advance the proposed endeavor; and
  • It would be beneficial to the U.S. to waive the labor certification/job offer requirement

Your proposed endeavor applies to the current and future work or research that you plan to do once you receive your green card. If you meet the one of the first requirements and can provide enough evidence or documentation to show that you also meet the 3 criteria for an NIW, then you may be eligible to file an NIW petition.

I don’t have an advanced degree, am I still eligible?

If you don’t have an advanced degree, you may still be eligible to file an NIW.  If you have a bachelor’s degree or a foreign equivalent plus 5 years of relevant work experience in the field, you may be eligible to meet the EB-2 classification and proceed with filing the NIW.

If neither the advanced degree option nor the Bachelor’s plus five years of relevant work experience seems applicable to you, you may qualify under the exceptional ability requirement. This requires that you meet at least three of the following criteria:

  • An official academic record showing that you have a degree, diploma, certificate, or award from a college, university, or other institution relating to your area of exceptional ability
  • Letters documenting at least 10 year of full-time experience in your field
  • A license or certification to practice your profession
  • Evidence that you received a salary for services that demonstrates your exceptional ability
  • Membership in professional associations
  • Recognition of your achievement and significant contributions to your field by peers, professionals, government entities
  • Any other evidence that is deemed helpful

What Evidence Do I need to Provide?

Helpful evidence may include, but is not limited to the following:

  • Publication record
  • Proof that your research has been cited by others
  • Proof of government funding or grants
  • Major media coverage
  • Awards
  • Conference presentations
  • Awards or memberships
  • Proof of patents or clinical trials

Benefits of Filing an NIW Petition

Filing an NIW petition can be a good option for individuals who have not yet been able to secure a job offer in the United States or for individuals who are not able to get employer sponsorship for their employment based green card. An NIW petition can be filed outside of the U.S. and upon receiving your immigrant visa stamp, you would then be able to enter the United States and receive your green card.

NIW can also allow individuals from India or China to secure an earlier priority date that you can then port into a petition in the future. For example, if you do not yet have a job offer, but you meet the requirements for an NIW, you may be able to file an NIW and obtain the priority date. Then in the future, if you receive a job offer and file another employment based green card, you can use the earlier priority date allowing you to potentially file the green card sooner.

Additionally, because an NIW does not require a labor certification, it can be a good option for individuals who will go out of status soon and need to secure an EAD card, as you can concurrently file the NIW and the I-485, I-765, and I-131.

Please feel free to Contact an attorney at Minsky, McCormick & Hallagan, P.C. if you feel you may meet the NIW requirements.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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