National Interest Waiver

I. What is National Interest Waiver?

Usually, in applying permanent residence ("Green Card"), one needs a job offer from an employer and an approved Labor Certification application before filing permanent resident application.  However, The Immigration Act of 1990 created a NEW CATEGORY OF THE "NATIONAL INTEREST WAIVER" for employment-based immigration for members of the professionals holding advanced degrees (masters or doctorates) and individuals of Exceptional Ability of the arts, sciences, or business. Applicants usually are requred to show to the Immigration and Naturalization Service that he or she at least meets three out of following six requirements:

1. Bachelors degree relating to area of exceptional ability;

2. Letter from current or former employer showing at least 10 years experience;

3. License to practice profession;

4. Person has commanded a salary or remuneration demonstrating exceptional ability;

5. Membership in professional association;

6. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization.

There is also a catch-all provision under this section that if the applicant believes with sufficient evidence that above-mentioned standards do not apply to his or her occupation, then the applicant may submit comparable evidence to establish eligibility. To convince the INS to accept such evidence, one needs to show his or her unique background/qualifications/achievements that the usual standards would not be entirely appropriate for the particular applicant.

 

National Interest Waiver-based permanent residence application is in the category of Second Employment-Based Preference and this preference usually requires a job offer.  However, the national interest waiver applicant needs to show to the INS that a waiver of such requirement would be indeed in the interest of the United States and therefore, such application shall not subject to the usual labor certification requirement.

 

II. Factors To Be Considered For Granting National Interest Waiver Once applicant has proven.

1. Improving the U.S. economy;

2. Improving wages and working conditions of U.S. workers;

3. Improving education and training programs for U.S. children and under-qualified workers;

4. Improving health care;

5. Providing more affordable housing for young and/or older, poorer U.S. residents;

6. Improving the environment of the United States and making more productive use of natural resources;

7. Improving international cultural understanding; and/or

8. A request from an interested U.S. government agency.

Once both of the above criteria have been met, then it only takes approximately 8-12 months from time of filing petition with INS to obtain a Green Card through Visa Processing at a U.S. Consulate or Adjustment of Status at an INS office. However, because of the increasing backlog in second preference category, one now must wait for about six to eight months to file adjustment of status application.

 

III. The Advantages of Applying National Interest Waiver

1. It is not necessary for the Applicant to have a job offer or show that employment will be in a permanent position.

2. Unlike the majority of employment-based immigrants, the individual eligible for a National Interest Waiver does not need to obtain Labor Certification from the Department of Labor.

3. No Employment Contract is required.

4. If an individual makes an application while employed with a company, the application is not effectively canceled by the termination of the Applicant's employment and/or his or her acceptance of a new position.

5. An individual who is applying for a National Interest Waiver does not have to be concerned about the amount of his salary.

6. An individual who is applying for an National Interest Waiver application does not have to have an advanced degree when he or she can show "exceptional ability".