Understanding National Interest Waivers: A Strategic Route Worth Consideration

The National Interest Waiver (“NIW”) is a special provision within the EB-2 employment-based immigration category that allows individuals to bypass the usual labor certification process (“PERM”) required for most employment-based green cards. The NIW is granted to foreign nationals who can demonstrate that their work is in the national interest of the United States, making it a valuable option for highly skilled professionals.

Employers should consider the NIW because it allows them to hire highly skilled professionals without the need for labor certification, streamlining the hiring process and attracting top global talent who can drive innovation and advance critical projects. This flexibility can be especially valuable in competitive industries where specialized expertise is crucial for maintaining a competitive edge.

Does your employee qualify for the NIW?

To qualify for the NIW, applicants must fall within one of the following two categories:

1. Advanced Degree Professionals: Applicants must have a master’s degree or higher in their field, or a bachelor’s degree plus five years of progressive work experience; OR
2. Exceptional Ability: Applicants must have demonstrated exceptional ability in their field, typically evidenced by substantial experience, professional recognition and significant contributions to their industry.

In addition, applicants must meet three primary criteria, known as the Matter of Dhanasar criteria:

1. Substantial merit and national importance: The applicant’s work must be of considerable merit and importance to the U.S. This means it should benefit the U.S. economy, improve healthcare, education, the environment or other key areas of national interest.
2. Well-positioned to advance the proposed endeavor: The applicant must be well-positioned to advance the proposed work. This typically requires showing that the applicant has a strong record of success in their field and that they have the necessary qualifications, skills and experience to continue their work effectively.
3. Benefit to the U.S. outweighs the need for labor certification: The applicant must demonstrate that the benefits of the applicant's work to the U.S. outweigh the need for a labor certification process.

Occupations that commonly receive the waiver include researchers and scientists in fields like healthcare, environmental science and technology; engineers working on infrastructure or energy projects; and entrepreneurs or business professionals who contribute to economic growth or job creation. Additionally, healthcare professionals addressing critical shortages, and educators involved in impactful research or educational programs, are also frequent NIW recipients.

How does NIW compare to the traditional PERM process?

The NIW is an attractive option for employers and professionals seeking U.S. permanent residency. However, the NIW comes with both advantages and disadvantages. The NIW offers the following advantages compared to the traditional PERM process:

• No PERM requirement: The NIW allows applicants to bypass the lengthy labor certification process, saving time and avoiding the complexities of proving that no qualified U.S. workers are available for the position. The NIW focuses solely on the applicant’s contributions and their importance to the U.S.
• No requirement for a permanent job offer: Employers can benefit from the NIW because it does not require a permanent job offer. This flexibility allows companies to work with professionals on a project basis or in consulting roles without the commitment of a long-term employment contract.
• Ability to self-petition: Applicants can self-petition. Unlike other employment-based green card categories, the NIW does not require a job offer from a U.S. employer. This can alleviate pressure from employers who are not ready to commit to an immigration process.
• Flexibility across industries: The NIW is available to professionals in a wide range of fields, particularly those whose work has national importance, such as research, healthcare, technology and entrepreneurship.
• Potential for faster processing: By avoiding the PERM process, employers and applicants may experience faster overall processing times compared to the traditional employment-based green card routes.
• National impact emphasis: The NIW focuses on the national impact of the applicant’s work, which can be beneficial for individuals engaged in high-impact projects or research that directly benefits U.S. interests.

While the NIW offers several advantages, there are also some disadvantages, which may make employers hesitant, compared to the traditional PERM process:

• Higher burden of proof: Applicants must demonstrate that their work is of substantial merit and national importance. This requires a well-documented and compelling case, making the process more complex and demanding.
• Subjective decision-making: The NIW process is highly discretionary, with USCIS officers having significant leeway in deciding whether an applicant’s work meets the national interest criteria, which can lead to inconsistent outcomes.
• Limited to specific applicants: The NIW is generally more suitable for individuals in specialized fields or those with work that clearly aligns with U.S. national interests. It may not be as accessible to professionals in less critical or broadly impactful roles.
• Uncertain timeline: The NIW process can be unpredictable in terms of processing times. While some cases may be approved relatively quickly, others may face delays due to the complex nature of proving national interest.
• No employer sponsorship: Without an employer’s sponsorship, applicants must rely solely on their own credentials and contributions, which can be challenging in fields where employer backing adds credibility to the petition.

Conclusion

The National Interest Waiver offers a unique opportunity worthy of consideration for many employers. Although the process comes with challenges, such as the higher burden proof and USCIS’s subjective decision-making, the NIW process can be advantageous for employers, particularly those operating in industries that require highly skilled professionals, researchers or innovators. By bypassing the lengthy and often complex PERM process, employers are able to onboard talent more quickly, and save time and resources. In addition, by leveraging the NIW process, employers are able to attract and retain top global talent in specialized fields such as research, technology, healthcare and engineering. The NIW offers a strategic advantage, not only in hiring highly skilled professionals whose work benefits both the company and the broader national interest, but also by enabling employers to enhance their innovation, competitiveness and ability to execute critical projects. With its flexibility and broad applicability, the NIW is an attractive option for both employers and prospective applicants.

For more information about the National Interest Waiver process, please contact a Dinsmore & Shohl LLP immigration attorney.