NIW, National Interest Waiver

The National Interest Waiver, or NIW, is an employment-based second preference (EB-2) petition. It derives its name because it asks the otherwise required labor certification required to be waived in the U.S. national interest.

A person may qualify for the waiver if they can show their work will be in the national interest of the U.S. The burden of proof in National Interest Waiver cases is on the petitioner – which can be either the employer or applicant.

A person qualifies if he or she is a professional who holds either an advanced degrees or is considered possessing exceptional ability in the sciences, business or arts.

The AAO precedent case, Matter of Dhanasar, has set forth several factors that must be considered when evaluating a request for a NIW. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Under this new framework, and after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:

• 1) that the foreign national’s proposed endeavor has both substantial merit and national importance;
  2) that the foreign national is well positioned to advance the proposed endeavor; and
  3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus a labor certification.

USCIS has granted NIW (EB2) to mathematicians, physics researchers, environmental scientists, artists, civil engineers, geologists, musical composers, electrical engineers, biomedical researchers, medical physicist, and several other professionals.