What Is the NIW (National Interest Waiver)?

May 25, 2022

Exceptional talent and skill may have few boundaries, but that doesn’t change the fact that national borders exist. One option for those wishing to become a permanent resident of the U.S. is applying for a visa under the employment-based, second-preference immigration (EB-2) classification using the national interest waiver (NIW) — a form of self-petition that does not require a job offer from a U.S. employer.

Who qualifies for a national interest waiver?

The NIW is used only for the EB-2 visa classification, so the first step in understanding if you might qualify to petition under a national interest waiver is knowing the EB-2 qualifications. The employment-based, second-preference permanent worker visa requires workers to meet one of the two following educational criteria:

Advanced degree: This requires you to have obtained education higher than a bachelor’s degree or the equivalent of an advanced degree, which is a bachelor’s degree plus five years of progressive work experience in the field after earning your bachelor’s degree.
Exceptional ability: You must prove your exceptional ability in the sciences, arts, or business and that your ability will benefit the U.S. economically, culturally, or in some other way in the future.

The United States Citizen and Immigration Services (USCIS) requires would-be immigrants to demonstrate their qualifications by providing at least three of the following pieces of evidence along with their application:

Official academic record of degree, diploma, certificate, or similar award directly related to their area of exceptional ability
Letter from supervisors, colleagues, or other officials that document at least ten years of full-time experience in their occupation
Evidence of license or certification to practice their profession or occupation
Evidence that they have earned a salary or other compensation for services related to their area of exceptional ability
Membership in at least one professional organization related to their exceptional ability
Evidence of recognition for their achievements and significant contributions to their industry or field by peers, government officials, or other professional or business organizations

The U.S. does provide some guidance on how to prove your extraordinary ability. This includes proving receipt of a substantial one-time achievement, such as an internally recognized award, or submitting at least three of the following kinds of documentation of your ability — and your successes — in your field:

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Lesser nationally or internationally recognized prizes or awards for excellence in your field
Membership in associations in your field that require outstanding achievements as judged by national or international experts
Articles about you in professional or major trade publications or other major media outlets
Participation on an expert panel or individually as a judge of others’ work in your field or a related field
Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in your field
Authorship of scholarly articles in your field in professional or major trade publications or other major media outlets
Display of your work at artistic exhibitions or other showcases
Evidence that you have performed in a leading or critical role for organizations or establishments that have distinguished reputations, such as serving on international or national boards related to your field
Evidence that you have commanded a high salary or other high compensation for your services in the field
Evidence of your commercial successes in the performing arts as shown by box office receipts or other sales of your body of work

Additionally, when applying for your visa through a national interest waiver petition, you must be able to prove that you are going to be able to use your advanced degree or ability to benefit the U.S. You will need to do this by submitting evidence that

Your proposed endeavor has substantial merit and national importance
You are in a good position to advance your proposed endeavor
The United States will benefit from waiving the requirements of a job offer and thus the labor certification process

When applying for a national interest waiver, you will want to make sure not only that your evidence meets the criteria regarding your qualifications but also that it is accurate and complete with valid signatures and, when necessary, certified translations. The process for applying for your visa with a national interest waiver will take longer and be more difficult if your application contains errors.

What’s the process for applying for a national interest waiver?

For the majority of EB-2 classification visas, employers undergo a labor certification process with the U.S. Department of State to approve the job offer before the worker can even apply for their visa. With the NIW, you will apply directly to USCIS.

Complete your I-140. This is the application to qualify under the second-preference, employment-based visa program. The filing fee is $700, and you will need to submit it along with all supporting evidence and documentation.
Attend your consular interview or apply for adjustment of status. The U.S. may require that you attend an interview at your home country’s U.S. embassy or consulate as well as submit biometric data, like your photo and fingerprints, as part of the application process. Alternatively, if you are in the United States and your priority date is current, you may be eligible to apply for adjustment of status.
Check the visa bulletin. The USCIS visa bulletin summarizes the availability of immigrant numbers every month for final action dates for permanent worker applicants. Getting it right is important in order to fall within the window of available spaces. After you file your I-140, you will receive the Form 797 from USCIS, which contains what is known as your priority date. This date is very important when it comes to finalizing the process to receive your visa.

If you are already in the U.S. in valid nonimmigrant status, you may be eligible to file Form I-485 for an Adjustment of Status along with your Form I-140. For most adults, this would be an additional filing fee of $1,225.

How long does it take to get a visa with a national interest waiver?

The total processing time for an EB-2 classification visa, regardless of whether you are using the NIW, is about six months from your priority date, depending on your home country. You will consult the USCIS visa bulletin for the visa type and your home country. If you see the letter “C” in the visa bulletin “Dates for Filing” under your applicable country of origin column, that means you can file your application. If you see a specific date, that means only applicants with a priority date that is earlier than the listed date may file an application.

The August 2021 bulletin, for example, indicates that EB-2 category applicants from virtually all countries except China and India, which usually have a years-long backlog, may file.

How hard is it to get a visa with a national interest waiver?

USCIS does not release specific numbers on how many NIWs are approved. However, in 2019, the U.S. received 78,209 second-preference, employment-based petitions from employers and self-petitioners. Of those, only 1,123 were denied. Applicants who fall into this category generally have a good chance of being approved unless there are significant paperwork errors or national security concerns.

No matter how talented or educated, filing immigration paperwork is worth getting right. If you are ready to take the next steps toward receiving permanent resident status in the U.S., schedule a consultation with Farmer Law today.

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What Is the NIW (National Interest Waiver)?

Who qualifies for a national interest waiver?

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Have a Question?

More Information from Farmer Law

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What’s the process for applying for a national interest waiver?

How long does it take to get a visa with a national interest waiver?

How hard is it to get a visa with a national interest waiver?

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