Employment-Based Second Preference – National Interest Waiver
(Employer Sponsorship and Labor Certification Not Required)

The Employment Based Second Preference Category is for professionals who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business.  Although this category generally requires a job offer and labor certification, the Attorney General may waive this requirement if the alien’s work is in the “national interest.”  This means that an individual who does not have a tenure-track or permanent job offer may be eligible to file a self-sponsored NIW petition in light of his or her professional achievements.   

As governed by the precedent decision in Matter of N.Y. State Department of Transportation in 1998, in order to qualify for NIW, the following three requirements must be met.  First, the applicant must be seeking employment in an area of substantial intrinsic merit.  Second, the proposed benefit of the employment should be national in scope.  Third, the applicant must show that the national interest would be adversely affected if a labor certification were required.

1. Substantial Intrinsic Merit Requirement:  Eligibility may be shown by documenting that the particular field of endeavor is related to serve the national interests of the United States.  This particular criterion is the easiest to establish because many professional fields do provide intrinsic value to national interest.  

2. Proposed Benefit is National in Scope:  Similarly, this element is relatively easy to satisfy.  It is worth mentioning that a correlation between national goal and the proposed activity need not be direct. 

3.  NIW Must Outweigh the U.S. Interest under the Labor Certification Process:  This particular element is by far the most difficult to satisfy.  The Labor Certification process has been contemplated to protect the job opportunities of U.S. workers having the same minimum qualifications as the alien seeking employment in the national interest.  As such, the petitioner must present solid evidence to prove that he or she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. 

To exhibit eligibility, the petitioner’s record of achievements must show “some degree of influence on the field as a whole.”  In addition, the petitioner must possess unique knowledge, abilities, or experience that sets him or her apart from others in the field.  It is desirable for the petitioner to play a critical role in cutting-edge projects in his or her research fields.    

Since NIW is within the EB2 preference category and therefore subject to the same backlogs as other EB2 labor certification cases, even though NIW petitioners enjoy the benefit of not having to go through a labor certification or obtain employer sponsorship, NIW petitioners born in mainland China and India are currently subject to a substantial backlog in visa number availability.  As such, NIW petitioners from mainland China and India, regardless of his or her pending or approved NIW petition, will need to maintain a separate legal status such as H-1B at least until the priority date becomes current and he or she is eligible to apply for adjustment of status. 

Our attorney has routinely filed NIW petitions for selected clients with considerable success.  The importance of strong recommendation letters and a well-drafted petition letter in support of your immigrant visa petition cannot be over emphasized.  Therefore, with our firm’s helpful assistance and broad experience in NIW petitions, your chances for success are greater.

If your occupation and/or research areas contribute to improving the U.S. health care, medical research, economy, wages and or working condition, the environment, infrastructure, educational programs for children and/or under qualified workers, email us your C.V. for a free evaluation today!