NIW as compared to its parallel Petitions –

Meaning

Unlike the first preference category (EB-1), EB-2 generally requires a specific, permanent job offer and a corresponding approved labor certification. The potential beneficiary has to rely on the employer to petition on his/her behalf. The labor certification process can be a very time consuming and costly affair for potential employers. This is remedied by the NIW or the National Interest Waiver provision for EB-2. Under this provision, an individual may seek a waiver of the otherwise required offer of employment and thus corresponding labor certification, by establishing that his/her admission to permanent residency would be in the so called “National Interest”. As a result, potential beneficiaries can petition on their own behalf. The National Interest Waiver (NIW) waives a labor certification and the necessity of having an offer of employment, but it does not waive the basic "entry" requirements for second preference classification. Therefore, only after the second preference threshold is satisfied can a National Interest Waiver (NIW) be considered.

Due to the heightened evidentiary standard that is required to be met, the NIW demands more than just a normal EB-2 Petition.

FORM – I-140 (together with corresponding evidence to establish that the foreign person’s admission to the United states would be in the National Interest).

Concurrent Filing: If you have a strong NIW profile, you can choose to file your I-140 Immigrant Petition and I-485 Adjustment of Status Application together (also called "concurrent filing").

The Immigration Act of 1990 states that the standards for a national interest waiver under the EB-2 category are "significantly above that necessary to prove prospective national benefit".The burden of proof rests with the foreign national to establish that exemption from or waiver of the job offer will be in the national interest. Each case is judged on its own merits. The government requires a fairly direct benefit to the community-at-large before it will agree that a job is in the national interest. Factors that have been considered in successful cases include:

1)  The foreign person's admission will improve the U.S. economy;

2) The Foreign person’s admission will improve wages and working conditions of the U.S. workers;

3) The foreign person’s admission will provide more affordable housing for young, aged or poor U.S. residents;

4) The foreign person’s admission will improve the U.S. environment and lead to more productive use of the natural resources;

5) The foreign person’s admission is requested by an interested U.S Government agency.

In 1998, INS designated its first precedent decision discussing the standards governing National Interest Waiver (NIW) requests in In re New York State Department of Transportation (NYSDOT). The decision established stricter standards for obtaining NIWs than those applicable in the past. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for a NIW.

1)  Area of Substantial Intrinsic Merit

2) Proposed Benefit of National Scope

3) National Interest of the United States

AAO Issued a New Decision – Matter of Dhanasar, Overturning the NYSDOT Decision on December 27, 2016. The decision established that USCIS may now grant a National Interest Waiver if the applicant demonstrates:

1)  The foreign national’s proposed endeavor has both substantial merit and national importance;

2) The foreign national is well positioned to advance the proposed endeavor;