The National Interest Waiver Green Card is perhaps one of the most underused direct green card options. INA § 203(b)(2)(B)(i) grants the Secretary of Homeland Security the discretion to approve an employment-based immigrant petition on behalf of an advanced degree/exceptional ability professional whose immigration is in the national interest.
An employment-based, second preference immigration petition must typically be filed with a permanent job offer and a labor certification that has been approved. However, a petition filed with a request for a national interest waiver on behalf of an individual does not need to be supported by a job offer; therefore, NIW applicants can self-petition, meaning the applicant can file the petition on their behalf without the need for a sponsoring employer, much like EB1-A applicants.
The key to success in an NIW case is to show that the alien's specific skill set would significantly benefit the US economy to the point that it would justify skipping all of the general requirements, such as requiring a US employer to petition for them or skipping the labor certification process, where an employer would first have to show that no qualified Americans were willing and able to fill the position.
Individuals who request a national interest waiver must provide proof of an advanced degree or exceptionally high ability, as well as three other requirements that USCIS uses to decide whether it is in the national interest to waive the labor certification requirement and the requirement for a job offer. The activities that are eligible for a national interest waiver are not specified by law; rather, USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence based on the three factors listed below.
The proposed endeavor has both substantial merit and national importance.
The person is well-positioned to advance the proposed endeavor.
On balance, it would be beneficial to the United States to waive the requirements of a job offer, and thus the labor certification.
NIW petitions have an advantage over other types of regular immigration petitions based on employment. An NIW is a desirable option for academics, researchers, post-doctoral research fellows, Ph.D. students, and other advanced degree or equivalent to advanced degree professionals including IT professionals because neither a labor certification nor a permanent job offer is necessary. It is important to gather strong evidence and build a compelling case to support the NIW petition.
You can pay an extra cost for premium processing to shorten the length of time it takes to process your EB2/ NIW petition to just 15 business days. Although it won't raise your chances of being accepted, it might shorten the amount of time you have to wait for a response.
The definition of "national interest" can be broad and may encompass various fields, including science, business, education, and more. It's important to note that immigration laws and policies can change, so it's advisable to consult with an immigration attorney for the most up-to-date information and guidance.
Hari Subhash, Esq.
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