The “National Interest Waiver” (or “NIW”) is a test for foreign nationals who are applying for U.S. permanent residence based on their work in their field of expertise, to determine if they may be approved for permanent residence on their own, without a job offer from a U.S. employer.
To qualify, the applicant, called a “self-petitioner,” must either be a "member of the professions holding an advanced degree” or be an "alien of exceptional ability in the sciences, arts, or business." These are the baseline requirements for the “EB-2” category for permanent residence.
If the self-petitioner can meet these baseline EB-2 requirements, then he or she may apply for permanent residence under the “National Interest Waiver,” by proving that it would be in the “national interest” of the United States to waive, or set aside, the usual requirements of (a) job offer and (b) testing of the U.S. job market (“labor certification”).
USCIS may grant a national interest waiver, if the petitioner demonstrates by a preponderance of the evidence – that is, that he or she more likely than not satisfies the requirements – that:
- The foreign national is proposing to engage in work or research, in the United States, which has both substantial merit and national importance; and
- The foreign national is well-positioned to advance the proposed work/research endeavor; and that
- On balance, it would be beneficial to the United States to waive the standard requirements for employment-based permanent residence; namely, a job offer by a third-party employer, and a testing of the labor market to prove that U.S. workers are not adversely affected by the offer of employment to a foreign national.
If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion, provided the foreign national otherwise merits a favorable exercise of discretion.
A common misconception is that the NIW is reserved for scientists and academics. It is not; many cases have been approved for individuals in such diverse fields as the performing arts, amateur and professional athletics, applied arts such as photography, and business development.
The key, of course, is to persuade the authorities that the planned activity will bring a benefit of “national interest” to the United States. In the next installment I will offer an overview of how the standard is currently interpreted, by profiling several successful applications. By way of example – and to give the reader an idea of the limitless potential, and diversity, of the National Interest Waiver – one of my own cases was for a martial arts instructor, now in California, who has brought fitness to help the aged and disabled and taught better, safer techniques to athletes in training. Another success was a self-taught photographer who applied her skills to advocating for the conservation of the natural environment -- including the night sky.
 An “advanced degree” means a formal U.S. or foreign degree at the master’s level or above, or the equivalent in terms of a formal degree at the bachelor’s level plus at least five years of progressive employment/experience.
 “Exceptional ability” is defined as “a degree of expertise significantly above that which is ordinarily encountered.” To show that the foreign national possesses exceptional ability in the sciences, arts – including athletics – or business, the application must be supported by documentary evidence of academic or experience-based credentials and recognition for achievements in his or her field of endeavor.
 The actual requirement is that such a test results in an approval by the Department of Labor, which is referred to as ”alien employment labor certification” or simply “labor certification.”