Curran & Berger

A National Interest Waiver does not require a job offer or a Labor Certification.

The level of scrutiny for National Interest Waivers has increased substantially since the mid-1990's.  However, we continue to find NIWs a successful category for carefully screened, well-documented petitions. The main obstacle we have encountered in the past few years is inconsistency on the part of the USCIS in adjudicating these petitions, and suspicion of those who have not yet received their Ph.D.

Individuals who possess an advanced degree (Master's level or above) and/or who can demonstrate exceptional ability in their field may be eligible to apply for a "National Interest Waiver".

To qualify for a National Interest Waiver, an individual must satisfy three criteria:

A. The individual's work must be of "substantial intrinsic merit". This is not clearly defined, but the following eight factors serve as a general guideline:

1. Improving the U.S. economy;
2. Improving wages and working conditions of U.S. workers;
3. Improving education and training programs for U.S. children and underqualified workers;
4. Improving healthcare
5. Providing more affordable housing for young and/or older, poorer U.S. residents;
6. Improving the environment of the United States and making more productive use of natural resources;
7. Improving international cultural understanding; and/or
8. A request from an interested government agency.

B. The benefit of the individual's work must be national in scope, not serve only a localized geographical area. Due to a 1998 court decision, professionals doing important work with a local impact (such as social workers and teachers) no longer qualify. There are, however, special rules for physicians working in a VA hospital or medically underserved area.

C. Waiving the labor certification process must be "in the national interest". This is a particularly vague and subjective standard. The USCIS is not consistent in how they evaluate this standard, but it is usually satisfied by showing that the work of the individual is of such a high caliber and importance that a labor certification would not be logical. 

The key to the National Interest Waiver petition is letters or recommendation from peers in the individual's field of expertise. In addition to the proposed future benefits of the individual's work, he or she must have already made significant contributions to their field. This is reflected in the letters, as well as in publications by or about the individual, awards, grants, or other materials relevant to the field. 

Approval of a "National Interest Waiver" currently takes at least a year from the date that the initial petition is submitted to the USCIS, for most cases. Please note that processing times may vary depending on caseload and administrative delays at regional USCIS Service Centers.  NIW petitions are not eligible for Premium Processing.  Premium Processing of Extraordinary Ability petitions was suspended in mid-2007 and may resume around mid-2998.  Processing times in both categories have varied tremendously over the last five years, but for now we expect EB1-1 petitions to be faster. 

The next step is to file for permanent residence based on the approved I-140 in the U.S. or at a U.S. consulate abroad.  The permanent residence application may also be filed concurrently with the I-140 National Interest Waiver, depending on the availability of immigrant visa numbers in the employment-based second preference category of the Visa Bulletin .