National Interest Waiver

EB-2: National Interest Waiver

The National Interest Waiver is an important method of petitioning for a Green Card through the Employment-Based 2 category, which allows for 28.6% of employment-based green cards. For the United States as a whole, it is an acknowledgement that there are many foreign individuals in various fields who are exceptional and can benefit the United States by becoming Americans. It is an attractive option for individuals of “exceptional ability” and with advanced degrees (this is a requirement). The advanced degree can be from a non-US university.

The other attractive facet of a National Interest Waiver is that an employer is not required to be the sponsor. There is no requirement of a time-consuming labor certification and no requirement that the employer be involved. In fact, a job offer is not even mandatory, which is the way much of employment immigration operates.

This can be a difficult standard to meet, especially because of the national interest requirement. There are three criteria: substantial intrinsic merit, national in scope, and serving the national interest to a substantially greater degree than a US worker with the same minimum qualifications. That means the national interest would be adversely affected if the labor certification process were required.

A profession can be considered to have substantial intrinsic merit, but the adjudicator can have a stringent view of whether the employment is “national” in scope. This can create a problem for a school teacher whose students are located in one city or for a civil engineer whose bridges are located in one state. The professions eligible for a national interest waiver are not defined by statute, so there is opportunity to argue for a wide swath of occupations. Engineers, doctors, scientific researchers,

If eligible, an application for permanent residence can be filed concurrently with the National Interest Waiver. Other options can be petitioned for simultaneously with the National Interest Waiver or while it is pending. You should consult with an immigration attorney carefully to map out prudent options that serve your needs. These can be tricky cases, but they are among our favorites.