Overview of the EB2 National Interest Waiver

To apply for status as a lawful permanent resident (“LPR”) in an employment-based category, a foreign national typically must be sponsored by a U.S. employer. One exception to this, however, is the national interest waiver (NIW), which falls under the employment-based, second preference (EB2) category. If the NIW is granted, the job offer requirement is waived, as is the typical requirement that a U.S. employer go through the labor certification (PERM) process with the U.S. Department of Labor (DOL) to demonstrate that there is no qualified U.S. worker available and willing to fill the position. This article is provided for the benefit of MurthyDotCom readers as a brief overview of the requirements to qualify for an NIW.

EB2 NIW Eligibility Determination

Determining EB2 NIW eligibility includes a two-step analysis. First, the foreign national must demonstrate eligibility for the EB2 preference category. And second, the foreign national must demonstrate that it is in the national interest of the United States to grant the waiver.

Qualifying for the EB2 Preference Category

The EB2 preference category is reserved for two categories of foreign workers – members of the professions holding advanced degrees and those foreign nationals of exceptional ability in the sciences, arts, or business. The USCIS defines an advanced degree as a professional or academic U.S. degree (or a foreign equivalent) beyond that of a baccalaureate. The USCIS also treats a baccalaureate degree followed by five years of progressive employment experience as equivalent to an advanced degree.

Exceptional ability requires an individual to demonstrate a level of expertise significantly above the norm in that person’s field. Three of the following six criteria must be shown: (1) an official academic record in the sciences, art, or business, (2) at least 10 years of experience in the occupation, (3) relevant licensure or certification, (4) a prior salary or remuneration indicative of the individual’s exceptional ability, (5) membership in professional organizations, or (6) evidence of recognition for achievements in the individual’s field. Satisfying three or more of these criteria will not automatically prove exceptional ability, and the USCIS will view the entirety of the evidence to make a determination.

Demonstrating National Interest

If an individual qualifies for EB2 classification, either by way of having an advanced degree or through exceptional ability, the USCIS will then analyze whether it is in the national interest of the United States to allow the foreign national to bypass the PERM process. For this, the USCIS uses a three-prong test from the precedent decision issued by the Administrative Appeals Office (AAO), “Matter of Dhanasar” <https://www.justice.gov/eoir/page/file/920996/download>. Under Dhanasar, the foreign national must demonstrate that (1) the endeavor has both substantial merit and national importance (2) the foreign national is well positioned to advance the proposed endeavor, and (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

First Prong: The Endeavor has Both Substantial Merit and National Importance

In the first prong, the individual must describe the proposed endeavor and demonstrate the endeavor’s merit and national importance. The individual must provide details of specific projects or goals — not just a list of job duties — and the project must be within the individual’s occupation. Substantial merit can be demonstrated by the economic impact of the endeavor or impact to research, pure science, or the general furtherance of human knowledge. National importance will be assessed according to its broad implications rather than solely on the basis of geographic terms.

Second Prong: Foreign National’s Position to Advance the Endeavor

The second prong focuses on the individual, not the proposed endeavor, and asks for proof that the individual is in a position to accomplish the project or goals. The USCIS will consider the individual’s education, skills, and prior similar successes, developed plans to accomplish the endeavor, progress already made to advance the endeavor, and external support for the endeavor from customers, users, and/or investors. The individual does not need to prove that the endeavor will succeed, rather only that the individual is in a position to advance the project.

A non-exhaustive list of examples of evidence that can be used includes degrees, certificates, licenses, and letters of support from other experts in the field. Published articles or media reports about the individual’s achievements can also be used, along with patents or trademarks developed by the individual.

Third Prong: The United States will Benefit from Waiving the PERM Process

In the third prong, the individual must demonstrate that the benefits of the proposed endeavor outweigh the government’s interests in protecting U.S. workers with the PERM process. An individual should demonstrate that the PERM process would be impractical, the U.S. will benefit from the individual’s contributions even if U.S. workers are available, and the national interest implications are urgent, such that the delay of the PERM process is adverse to U.S. national interests.

Special Consideration for STEM Petitioners

The United States is presently placing heavy emphasis on science, technology, engineering, and math (STEM) advancement for global competitiveness. The USCIS has provided guidance for how the Dhanasar framework is to be applied for STEM endeavors. STEM endeavors are likely to be viewed as having inherent substantial merit and national importance. However, STEM teaching positions alone are unlikely to be viewed as having national importance. Evidence of an advanced degree, particularly a Ph.D., will provide strong support that an individual is well positioned to advance a STEM endeavor. And finally, the USCIS will examine particularly whether the STEM area is critical to U.S. competitiveness in determining whether to waive the PERM process. Extra weight is given to endeavors that support U.S. national security or have support from U.S. government agencies.

Conclusion

The NIW is an enticing option for many foreign nationals, as it removes the need to be tied to any particular employer. Note, however, that it still falls under the EB2 category. So, for foreign nationals born in India, gaining approval for an NIW petition can provide some security, even if it may not accelerate the process for obtaining a green card. Individuals with questions about qualifying for an NIW are encouraged to schedule a consultation with a Murthy Law Firm attorney.

Copyright © 2024, MURTHY LAW FIRM. All Rights Reserved