Published on:

National Interest Waiver Needs to Provide for Work Authorization

The Immigration and Nationality Act provides that noncitizens with exceptional abilities or who are members of the professions holding an advanced degree, may receive a waiver of the job offer requirement if the USCIS deems such waiver in the “national interest.”  The national interest waiver is available only to noncitizens in the second preference category (EB-2).  This category is backlogged for years for noncitizens born in India or China, and without the ability to apply for adjustment of status for many years, such noncitizens will have to maintain H-1B status.  The requirement to maintain nonimmigrant status puts such noncitizens in a bind and makes it very difficult to develop their endeavor even if such endeavor meets all the requirements for a national waiver.   Noncitizens who apply for National Interest Waiver should be allowed to apply for employment authorization.

To prove eligibility, the petitioner has the burden to show that the person qualifies as either (i) a member of the professions holding an advanced degree or (ii) as a person of exceptional abilities.  Either of these two qualifications is a threshold issue.  Once the person demonstrates that such person meets at least one of the categories, the person also must prove that (iii) the waiver of the job offer requirement, which requires a test of the US market through labor certification requirement, is in the “national interest.”

The term “national interest” does not have a definition in the INA or in the regulations.  It is a balancing test that requires the petitioner to establish that the waiver of the job offer requirement is in the national interest. USCIS will weigh the evidence on a case-by-case basis. USCIS may grant a national interest waiver as a matter of discretion if the petitioner demonstrates eligibility by a preponderance of the evidence, based on the following three prongs: (i) The person’s proposed endeavor has both substantial merit and national importance; (ii) The person is well-positioned to advance the proposed endeavor; and (iii) On balance, it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements.

Our office is well-versed in the requirements for a successful national interest waiver petition.  If you are a noncitizen who wants to immigrate to the U.S. or receive permanent residence in the U.S. and has good ideas that may benefit the United States, contact our immigration lawyers for guidance on how to apply for a NIW.

Contact Information