Normally, an individual must have both a job offer and approved Labor Certification before he or she can file for an employment-based second preference (“EB-2”) petition.
However, an individual can bypass those two requirements and file for an EB-2 if the individual qualifies for a National Interest Waiver (“NIW”). Essentially, the NIW candidate must show that the candidate will provide a benefit so great to the U.S. that the candidate should be allowed to bypass the Labor Certification process. Obviously, an individual with highly renowned unique skills or talents makes an ideal NIW candidate. Some examples would be Ph.D. students with specialized theses, or renowned scholars. Additionally, individuals working for private companies may qualify if their work provides a substantial national benefit, and certain physicians also qualify for NIW, provided they meet the statutory requirements.
- When an individual, or a petitioning employer, files a National Interest Waiver, the USCIS must consider the following factors when deciding to grant or deny a waiver request:
- · Whether the candidate seeks work in an area of substantial intrinsic merit to the U.S;
- · Whether the benefit from the candidate’s proposed activity will be national in scope; and
- · Whether the national interest would be adversely affected if a Labor Certification were required for the alien applicant.
The key question to ask is: Does the individual benefit the national interest to a substantially higher degree than an available U.S. worker with the same minimum qualifications?”
The individual must illustrate that the individual’s national benefit is greater than the national interest provided by the Labor Certification process. Note that this is a very high ceiling, as the courts have stated that it is insufficient for an individual to show that the individual has an important role in a project, or that the worker can ameliorate a labor shortage. In those particular cases, the USCIS denied the NIW requests because the individual did not provide a benefit substantially higher than that of a comparable U.S. worker. Therefore, in those cases, the individuals could not allowed to bypass the Labor Certification process. Here is an example of an individual who would probably qualify for a NIW:
Mr. F is a nationally renowned organic agriculturist. He has over 10 years of experience, and is recognized as one of the foremost experts on large scale, sustainable organic crops. Mr. F’s current project will benefit the U.S. because it will allow farmers all over the U.S. to economically grow organic crops year round without damaging the surrounding environment. The general U.S. public benefits because healthy, pesticide-free food will now be affordable to everybody. However, Mr. F’s current status will expire soon, and he may have to leave the U.S. because it is unlikely the can renew his status in time.Mr. F’s field is very specialized, and the handful of agriculturists engaged in comparable research are scattered across the nation. Furthermore, Mr. F is working with live crops that must be tended to daily under very strict conditions that Mr. F devised. In the event that a replacement is found for Mr. F, it is even more unlikely that he or she can arrive in time and replicate the same conditions and continue Mr. F’s research. Therefore, Mr. F makes an ideal NIW candidate, because (1) his specialized area of scale organic crops intrinsically benefits the U.S.; (2) his large scale organic research is meant to benefit the entire U.S.; and (3) if Mr. F is subjected to the Labor Certification process, the U.S. would be adversely affected because the U.S. would lose the benefits of Mr. F’s research since no one else can continue it.
An individual can file for his or her own National Interest Waiver. Since this waiver category requires no job offer, a U.S. employer can simultaneously file a National Interest Waiver on behalf of an individual. Typically, a candidate should include the following petitions and documents in his or her NIW petition:
- · Form I-140;
- · Evidence the individual meets the NIW requirements, including whether the individual is an “advanced degree professional” or an “alien of exceptional ability”;
- · Letters of recommendation, preferably from other renowned or authoritative figures in the individual’s specialized field. The USCIS has stated that letters from independent experts or figures are generally preferred over letters from people that have worked with the individual. If an individual believes he or she qualifies for a NIW, he or she should contact an immigration attorney for additional information and requirements.