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10 nov 2022
EB-2 NIW Visa

National Interest Waiver Eligibility Overview

Find out if you qualify for the National Interest Waiver, which is part of the U.S. immigration process for individuals with exceptional abilities.

National Interest Waiver Eligibility Overview

Qualification for the EB-2 classification as an individual holding an advanced degree or a person of exceptional ability does not automatically qualify the person for a National Interest Waiver (NIW) as described in the last article,
What is the EB-2 NIW Immigrant Visa?
Before the alien can be granted an NIW. The applicant must then demonstrate their eligibility for the waiver of the labor certification and job offer requirements after establishing their eligibility.

The applicant must be able to show the following to be eligible for an NIW:

  • Evidence that the proposed project by the applicant is both substantial merit and important nationally
  • Proof that the applicant is in a good position to pursue the planned project or endeavor
  • Evidence that, overall, the U.S. would benefit from waiving the conditions of a job offer and, consequently, a labor certification for the applicant

Matter of Dhanasar and the NIW

In 2016, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), created a new analytical framework for determining the standard of review and qualification for individuals seeking employment-based immigrant visas under the EB-2 category for professionals holding advanced degrees or exceptional ability.

This case established a new three-part test USCIS must use for determining whether or not to grant a National Interest Waiver. Under the new test, the applicant must show (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 of a labor certification.

What are the substantial merit and national importance?

Prior to 2016, an applicant for an NIW had to show that their entry to the U.S. and their proposed endevour would have contributed to the national interest of the entire U.S. nation. However, after the Matter of Dhanasar, the court ultimately decided that the scope of this requirement was too large. Substantial merit, thus became part of the new test, whereby an NIW applicant can be working on a project, innovation, or research whereby a local impact can have national importance.

Education, health, culture, technology, science, entrepreneurship, and business are a few areas where "substantial merit" can be demonstrated. The applicant may define their proposal in terms of its broader influence on the social good rather than having to show how their work would be economically profitable.

An example of the type of applicant that can qualify for the NIW is an entrepreneur. Entrepreneurs come from various backgrounds and areas of expertise, all with the goal of bringing their business, ideas, or products to the U.S. Although an entrepreneur may only be bringing their business or service to a local U.S. community, they could argue that their service or product will benefit the U.S. overall by technology or as a blueprint to be scaled to a national level.

Documents outlining the significance of the applicant's work, its value to society, or how it will help the U.S. are often acceptable forms of evidence that support the assertion that the applicant's work has considerable value. Supporting documentation is frequently provided in the form of letters of reference from authorities in the same area outlining the applicant's work and its importance to the U.S.

Is the Applicant Well Positioned to Advance the Proposed Endeavor

The applicant's ability to demonstrate that they are in a position to pursue their proposed endeavor is the second component of the test. To assess the possibility that an applicant would succeed in their endeavors, USCIS will consider the applicant's education, skills, accomplishments, proposed plans or business models, progress made toward those goals, and any considered other supporting documentation.

Furthermore, it's not required to demonstrate that the endeavor will "most likely succeed in the end." The applicant only needs to show that they are "well-positioned" to carry out their project successfully. This implies that to apply for the NIW, and the applicant does not necessarily need to be a well-known, prosperous business. Having a business with a long track record of success may help their case.

The last condition for establishing the National Interest Waiver is to demonstrate that the U.S. would gain from the waiver of the job offer and labor certification requirement.

The national interest and whether it outweighs the potential effects on the domestic labor market from the applicant's intended endeavor will be determined by USCIS.

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