NIW
The NIW is part of the EB-2 (employment-based, second preference) immigrant visa category. Normally, EB-2 requires both a job offer and labor certification (PERM), but the National Interest Waiver removes those requirements.
USCIS explains:
“A national interest waiver is a waiver of the job offer requirement, and thus the labor certification, for certain foreign nationals who are members of the professions holding advanced degrees or who have exceptional ability.”
(USCIS Policy Manual, Ch. 5, Sec. A)
This means an NIW applicant can self-petition, similar to EB-1A.
Eligibility: The Two Levels
An NIW applicant must first qualify under EB-2 basic eligibility and then meet the NIW criteria.
Step 1 – EB-2 Threshold
The applicant must show one of the following:
- Advanced degree (Master’s or higher, or Bachelor’s + 5 years of progressive experience), OR
- Exceptional ability in the sciences, arts, or business.
Step 2 – Waiver Criteria (Dhanasar Test)
In Matter of Dhanasar (2016), the AAO set out the modern NIW standard. USCIS officers apply a three-prong test:
- Substantial Merit and National Importance
- Applicant’s proposed endeavor must have both inherent value (“substantial merit”) and a scope that is national in importance.
- USCIS notes:
“Substantial merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education.”
(USCIS Policy Manual, Ch. 5, Sec. D.1)
- Well Positioned to Advance the Proposed Endeavor
- Applicant must demonstrate they are qualified and capable of moving the endeavor forward.
- USCIS looks at education, skills, prior success, record of achievement, and plans for future work.
- Quote:
“USCIS considers factors including, but not limited to, the applicant’s education, skills, knowledge, record of success in related efforts, progress toward achieving the proposed endeavor, and the interest of potential customers, users, investors, or other relevant entities or individuals.”
(USCIS Policy Manual, Ch. 5, Sec. D.2)
- On Balance, Beneficial to Waive the Job Offer and Labor Certification
- USCIS must determine that it would be more beneficial to the U.S. to waive the normal job-offer and labor-certification requirements.
- Quote:
“In evaluating this prong, USCIS may consider factors such as whether, in light of the nature of the applicant’s qualifications or the proposed endeavor, it would be impractical to secure a job offer or obtain labor certification, and whether the U.S. would still benefit even if qualified U.S. workers are otherwise available.”
(USCIS Policy Manual, Ch. 5, Sec. D.3)
4. Evidence USCIS Considers
While there’s no fixed checklist, USCIS suggests documentation such as:
- Degrees, transcripts, or licenses (to show advanced degree/exceptional ability).
- Publications, patents, or media coverage (to prove merit and national importance).
- Letters from government agencies, industry leaders, or academics (to show recognition and need).
- Evidence of prior implementation, funding, or adoption of the applicant’s work.
- Business plans, investor interest, or contracts for entrepreneurs.
5. Important Considerations
- Scope of impact: Work must extend beyond a local area to be “national in importance” (though not necessarily nationwide in reach if the broader implications are national).
- Entrepreneurs: NIW is especially useful for founders who may not yet have an employer sponsor.
- STEM fields: USCIS policy notes that contributions in STEM and critical technologies often satisfy “substantial merit and national importance.” (See USCIS STEM Guidance, 2022).
- Balancing test: Even if U.S. workers exist, NIW can still be granted if the applicant brings unique skills or benefits.
6. Advantages of NIW
- Self-petition: No employer sponsorship required.
- No PERM labor certification: Faster than traditional EB-2.
- Flexibility: Beneficiary can change jobs or employers without invalidating the petition, as long as they continue the endeavor.
Pathway for researchers, entrepreneurs, and professionals in public-interest fields.