National Interest Waiver Details
The National Interest Waiver (NIW) is part of the second employment-based category (EB2) for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D.). Ph.D. students also qualify. An alien may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his or her admission to permanent residence would be in the national interest.
The national interest waiver is a good option for those who do not wish to wait several years for labor certification or those who do not wish to be tied to a specific employer during labor certification. The national interest waiver applicant sponsors him or herself and is not required to have a job. NIW applicants may make additional green card applications while their NIW petition is pending. Furthermore, if the NIW applicant is employed, the employer will not have knowledge of a pending NIW application.
The National Interest Waiver also applies to physicians. Physicians who agree to work full time in a designated health professional shortage area or in VA hospital and where a federal agency or State department of public health has determined that the physicians work is in the public interest for an aggregate of five years (not including time in J1 visa status) can obtain an NIW green card.
For whom is the National Interest Waiver appropriate?
Foreign nationals with exceptional ability, or an advanced degree, who can show that their activities will substantially benefit the US national interest.
Foreign national physicians who agree to work full time in a health professional shortage area.
What are the requirements for obtaining the National Interest Waiver?
For non-physicians, the applicant must show the following:
That the alien seeks employment in an area of substantial intrinsic merit;
That the proposed benefit will be national in scope; and
That the national interest would be adversely affected if a labor certification would be required for the alien.
For physicians, the applicant must show the following:
The physician must agree to work full-time (40 hours a week) in a clinical practice for a total of five years.
The clinical practice must be located within an area that is designated as a Medically Underserved Area (MUA), a Primary Medical Health Professional Shortage Area (HPSA), a Mental Health Professional Shortage Area (MHPSA), or within a Veterans Affairs (VA) facility.
A physician serving in a MUA, MHPSA, or HPSA must provide services in a medical specialty for which the area is designated.
A physician must accumulate the required five years of medical service within the six-year period beginning on the date the NIW is approved
For entrepreneurs, the applicant must show the following:
The entrepreneur must seek employment in an area that has substantial intrinsic merit
The entrepreneur demonstrate that the proposed benefit to be provided will be national in scope. For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact. As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.
The entrepreneur must demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States.
