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Immigration and Nationality Law
San Jose, Silicon Valley

Immigration Services / Immigrant Petition based on National Interest Waiver

National Interest Waiver

A majority of employment based immigrations are employer sponsored, which require, among other things, a permanent job offer from U.S. employer.  One exception to this general rule is National Interest Waiver. To put it in a simple way, National Interest Waiver allows an alien to apply for green card without permanent job offer from U.S. employer by establishing that granting him/her permanent residence is in the U.S. national interest. There is no rule or statutory standard as to what will qualify an alien for a National Interest Waiver. The USCIS considers each case on an individual basis.
NIW is available only to employment based second preference immigration petitions (Eb-2). This category requires that the alien beneficiary possess either an advanced degree (Masters Degree or above) OR exceptional ability.  Therefore, you are statutorily eligible for NIW petition if you have at least a Master degree or you can establish exceptional ability with convincing evidence.

NIW Advantage
Compared to regular Eb-2 petitions, NIW has two major advantages: first, a permanent job offer is not required; and second, a labor certification is not required. Accordingly, a qualified alien can file NIW petition on his/her own, and does not have to go through the dubious Labor Certification process.

Criteria to Qualify for National Interest Waiver
In the 1998 Administrative Appeals Office decision New York State Department of Transportation (NYSDOT), the USCIS adopted a strict test for determining what constitutes national interest for these purposes.  Under NYSDOT, an NIW will be granted only when the following elements are proven:

  • The foreign national is seeking employment in an area of substantial intrinsic merit;
  • The benefit of the work will be national in scope, i.e., will not benefit only a local community; and
  • The national interest will be adversely affected if a labor certification is required for the position.

This third element is difficult to establish.  USCIS takes the position that protecting the U.S. workforce (which is the purpose of a labor certification) is itself a matter of national importance.  Therefore, the benefit conferred by the foreign national's employment must exceed the benefit provided by the protections of the labor certification process.  In addition, an applicant for an NIW must show that he or she would not be able to provide the same national benefit if a labor certification were required.

Factors that have been considered in successful cases include:

    • The foreign national’s admission will improve the U.S. economy.
    • The foreign national’s admission will improve wages and working conditions of U.S. Workers.
    • The foreign national’s admission will improve educational and training programs for U.S. children and underqualified workers.
    • The foreign national’s admission will provide more affordable housing for young, aged, or poor U.S. residents.
    • The foreign national’s admission will improve the U.S. environment and lead to more productive use of the national resources.
    • The foreign national’s admission is requested by an interested U.S. government agency.

Many of our cases in which National Interest Waivers have been approved were supported by affidavits from independent, established and influential experts in the field.

Application Procedures

Case Assessment

  • Foreign national provides us with detailed resume, an individual statement regarding the national benefit that will be conferred by the proposed work, and a list of potential references for testimonial letters.
  • We will analyze information to assess probability of approval of the NIW.

Petition Preparation

  • Foreign national provides us with copies of publications and all other supporting material.
  • We will draft petition support letter to establish that the foreign national’s eligibility.
  • We will draft I-140 petition forms and petition letter for the applicant to review and sign before filing the application with the USCIS





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Law Office of Ning Gan
1625 The Alameda, Suite 800
San Jose, CA 95126
Tel: (408) 279 6699
Fax: (408) 491 9760
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