Foreign workers with advanced degrees or exceptional ability in their field — and whose work is in the United States’ national interest — may apply for a waiver of the PERM labor certification requirement and submit an Immigrant Visa Petition directly to USCIS on Form I-140. This category is called a National Interest Waiver or NIW. In some cases, depending on their nationality, foreign workers applying for EB-2 NIW status are eligible to file their personal application for a green card (I-485) concurrently with the I-140 petition.

This category is available to advanced degree professionals, and to persons with exceptional ability in the sciences, arts, or business whose work will substantially and prospectively benefit the national economy, cultural or educational interests, or welfare of the U.S.

Required Evidence of Work in the National Interest

NIW applicants must document that their professional activities are currently (not merely prospectively) in the national interest. Examples of activities in the national interest include:

  1. improvement of the U.S. economy;
  2. improvement of wages and working conditions of U.S. workers;
  3. improvement of education and training programs for children and unskilled workers;
  4. improvement of health care or health-care delivery;
  5. provision of more affordable housing for young, old, and poor U.S. residents;
  6. improvement of the U.S. environment and more productive use of natural resources; and
  7. accommodation of the needs of an interested U.S. government agency.

The petition must clearly demonstrate that the foreign worker will work in an area of “substantial intrinsic merit”; that there is a benefit that is national in scope; and that there is a record of past accomplishments from which it can be concluded that they will serve the national interest to a greater extent than other persons with the same level of education, training, and/or experience.

Required Evidence of Advanced Degree or Exceptional Ability

In addition to meeting the above requirements, an applicant must either possess an advanced degree in the field (master’s or higher, or, in alternative, a bachelor's degree and five years of post-graduate progressively responsible experience) or exceptional ability as demonstrated by meeting at least three of the following criteria:

  • Official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  • Letters documenting at least 10 years of full-time experience in the occupation;
  • A license to practice the profession or certification for the profession or occupation;
  • Evidence they commanded a salary or other remuneration for services;
  • Membership in a professional association(s);
  • Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations; or
  • Other comparable evidence.

To speak with an immigration attorney about EB-2 “national interest waiver” visas contact Grossman Young & Hammond.