National Interest Waiver (NIW)
What Does the Law Say?
INA §203(b)(2) provides that, in order to be eligible for immigrant visas in Employment Based Second Preference (Eb-2), beneficiaries must be members of the professions holding advanced degrees or aliens of exceptional ability. Normally, the granting of a visa under §203(b)(2) requires that the foreign national beneficiary have a permanent job offer from a U.S. employer and the petitioning U.S. employer undergo a Labor Certification process.
Labor Certification is the process whereby a petitioning U.S. employer demonstrates that there is a shortage of qualified U.S. workers in a particular field. The purpose of Labor Certification is to protect the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment in the U.S.
However, INA §203(b)(2)(B) creates an exception to this general requirement of Labor Certification by providing that the "Attorney General [now the Secretary of Homeland Security] may, when he deems it to be in the national interest, waive" the Labor Certification requirement. However, neither the statute nor the USCIS regulations define the term "national interest."
The Three-Prong Test for National Interest Waiver
The Administrative Appeals Office (AAO) in Matter of Dhanasar lays out the criteria for deciding whether a national interest waiver (NIW) should be granted. USCIS adopted this decision as precedent that has binding authority over national interest waiver adjudications. This decision vacated the long-standing Matter of New York State Department of Transportation case.
In Matter of Dhanasar, the AAO set forth a Three-Prong test for granting national interest waiver. First prong: the foreign national's propose endeavor must have both substantial merit and national importance; second prong: the foreign national is well positioned to advance the proposed endeavor; and third prong: on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. If the foreign national meets these three elements, then the USCIS may approve the NIW as a matter of discretion.
Substantial Merit and National Importance
The first prong focuses on the specific endeavor that the foreign national proposes to undertake in the context of “substantial merit” and “national importance.” An endeavor’s “substantial merit” can be demonstrated in a range of areas, such as business, entrepreneurialism, science, technology, culture, health, or education. Notably, economic impact is not required to establish substantial merit, which is beneficial to foreign nationals who work in fields of pure science and the furtherance of human knowledge. Furthermore, “national importance” can be demonstrated through prospective impact, such as having national or global implications within a particular field (e.g., medical advances or improved manufacturing processes).
Advancing the Proposed Endeavor
The second prong focuses on factors that indicate whether the foreign national is “well positioned to advance the proposed endeavor.” Such factors include, but are not limited to, the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. Please note that Matter of Dhanasar does not require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed, as they acknowledge this would be very difficult to prove.
It Would Be Beneficial to the United States to Waive the Job Offer and Labor Certification Requirements
The third prong focuses on showing why “it would be beneficial to the U.S. to waive the requirements of a job offer and thus of a labor certification.” Crucial to the third prong is proving that "on balance" the benefits inherent in the labor certification process (i.e. protecting jobs and job opportunities for U.S. workers) are outweighed by factors presented by the foreign national that are deemed to be in the national interest. To determine this, USCIS may evaluate factors such as whether it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, assuming that other qualified U.S. workers are even available, the U.S. would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.