7. NC boat♦ National Interest Waiver

National Interest Waiver (“NIW”) is under EB-2 category. In a NIW petition, an alien petitioner need to demonstrate that your request to waive the job offer requirement and, therefore, the labor certification, is in the “national interest.” 

There is no statutory or regulatory definition with regards to “national interest”.  Instead, USCIS relies on a 1998 Administrative Appeals Office precedent decision, Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm’r 1998) (“NYSDOT”). This decision set forth a three-prong test to evaluate “national interest”. 

♦ Key Requirements for National Interest Waiver petition

  1. The alien petitioner plans on working in the United States in an area of substantial intrinsic merit. The USCIS decides on whether the importance of your proposed work is readily apparent.
  2. The proposed impact of the alien’s work is national in scope. The alien petitoner needs to establish a benefit to more than a particular region of the country, i.e “national in scope”.
  3. Waiving the labor certification would benefit the national interests of the United States. When deciding whether to grant a waiver of the labor certification requirement, the USCIS decides on whether the national benefits you offer are so great that they outweigh the national interests inherent in the labor certification process.  The alien’s past record of specific prior achievements has an indication of future benefits to the national interests of the United States.

♦ EB-2 National Interest Waivers to Entrepreneurs

  • Background Availability of EB-2 National Interest Waivers to Entrepreneurs since Aug. 2, 2011. 

On Aug. 2, 2011, Secretary of Homeland Security and USCIS Director outlined a series of policy, operational, and outreach efforts to fuel the nation’s economy and stimulate investment.  These initiatives allows the US to realize the potential of current immigration laws to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow the U.S. economy and create American jobs.

As part of the initiative, entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. USCIS has issued Frequently Asked Questions to clarify this issue and conducted internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from the upcoming stakeholder engagements detailed below.

  • Key to an Alien entrepreneur’s NIW petiton

The USCIS will give due consideration on whether the alien’s entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Demonstrating that the Alien’s business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify an alien entrepreneur for an NIW.  However, the alien still have to show that the creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.