Employment Based Green Cards (National Interest Waiver)
The National Interest Waiver (NIW) is a U.S. immigration process that allows certain foreign nationals to apply for a green card (permanent residency) without needing an employer-sponsored job offer or undergoing the labor certification process, provided they can demonstrate that their skills and contributions will significantly benefit the United States.
NIW is a part of the employment-based second preference (EB-2) category.
Eligibility for NIW Category:
To be considered for a NIW, the foreign national must first qualify for the EB-2 category. This typically means that the individual:
- Holds an advanced degree or unique expertise in their field (a master's degree or higher, or a bachelor's degree with at least five years of progressive experience), or
- Demonstrates exceptional ability in their field (sciences, arts, or business).
Benefit to the U.S.:
The primary criterion for the NIW is that granting the applicant a green card must be in the national interest of the United States.
As established by a 2016 precedent decision (Matter of Dhanasar), the applicant must meet a three-pronged test to demonstrate that a waiver of the job offer and labor certification is in the national interest.
The following are the factors that determine if a foreign national meets this test:
- Area of Substantial Intrinsic Merit: The foreign national's proposed endeavor (work or project) has substantial merit and national importance.
- Positioned to Advance the Proposed Endeavor: The foreign national is well-positioned to advance the proposed endeavor, i.e., they have a proven record of success in their field, as evidenced by things like publications, awards, or a significant work record.
- Benefit Outweighs the Need for Labor Certification: On balance, it would be beneficial to the U.S. to waive the requirements of a job offer and thus the labor certification.
Fields of Application:
Many NIW applicants come from fields like sciences, arts, healthcare, business, and education, but it's not restricted to these fields. The essential aspect is demonstrating that the work will significantly benefit the U.S.
Advantages of NIW:
- No Labor Certification: Applying for the green card based on the National Interest Waiver allows a foreign national to skip the Labor Certification Process (PERM), which can result in much faster processing and granting of the green card.
- Self-Petitioning: Another advantage of the NIW is that a foreign national can self-petition. This means they don't need an employer to sponsor their green card application. Instead, they can file Form I-140, Immigrant Petition for Alien Worker, on their behalf.
The process consists of 2 stages: (1) Petition for Alien Worker - I-140, (2) Adjustment of Status or Consular Processing - Green Card. Below is a short description of each stage.
(1) Petition for Alien Worker
The purpose of this stage is to demonstrate the qualifications of the foreign national, which means providing evidence of educational credentials and work experience record. This stage also involves providing evidence and information confirming that the foreign national satisfies the Three-Pronged Test as established by the Matter of Dhanasar discussed above.
(2) Green Card Application
Green Card application is the last stage of the process. If you are in the United States, you will file an application for an adjustment of status (Form I-485). If you are outside of the United States, you will file an immigrant visa application (Form DS-260). In order to file Form I-485, priority date for your case must be current. Please check the visa bulletin page for more information.
When you file your application for an adjustment of status, you may also file an application for an employment authorization (EAD Card) and an application for an international travel document (Advance Parole). In addition, you can also apply for your Social Security Number directly with the USCIS. You can renew your Employment Authorization Document and your Advance Parole as long as your green card application is pending.
If you are outside of the United States, you will file your immigrant visa application (Form DS-260). Once this application is filed, you will wait for your interview to be scheduled at the US Embassy at your home country.
Why are there waiting times for the green card?
Immigration law divides employment based petitions into different categories and each category has an annual limit of green cards which can be issued during any fiscal year. The more applicants apply in a given category, the longer the wait time. The order in which green cards are issued is determined by the Visa Bulletin published monthly by the Department of State. Please check the visa bulletin page for more information.
Every month the US Department of State publishes a Visa Bulletin which sets cutoff dates for all preference categories. Please check the visa bulletin page to approximate your anticipated wait time. USCIS issues green cards based on the Visa Bulletin and the Priority Dates.
Your place in the waiting line for your green card is called a Priority Date. Priority Date is the date when you had your green card case started. USCIS can only issue green cards to those applicants whose Priority Date is before the cutoff date listed in the Visa Bulletin.