National Interest Waiver (NIW) Applications for Employment-Based U.S. Immigration

UPDATE: December 27, 2016 Decision Matter of Dhanasar by the Administrative Appeals Office (AAO) Introduces New Framework for Evaluating NIW Applications.

The National Interest Waiver (NIW) can be filed by an individual in the EB-2 Second Preference Employment-Based category. The EB-2 category requires the applicant to have an advanced degree or exceptional ability in the sciences, arts, or business. Normally the EB-2 category also requires a permanent job offer and approved labor certification (LC) to be approved (see our page on PERM Labor Certification). The LC and job offer requirements may be waived, however, if the applicant can show that such a waiver is in the national interest of the United States.

Whether a case merits approval of a National Interest Waiver is determined by a three-part test described by the AAO in Matter of Dhanasar, which vacated the previous framework in place for almost 20 years outlined in Matter of NYSDOT:

  1. The foreign national’s proposed endeavor has both substantial merit and national importance; AND
  2. He or she is well positioned to advance the proposed endeavor; AND
  3. On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements

In order to merit approval of a NIW, the applicant must demonstrate that the prospective benefits of their contributions to their field far outweigh the national interest in protecting the domestic labor market through the LC process.

How We Can Help

  • We prepare your application and assemble supporting documentation.
  • We draft a legal brief detailing your eligibility for a NIW.
  • We prepare robust responses to USCIS requests for evidence.

We welcome you to contact the Brian M. Wang | Whiteman Osterman & Hanna LLP to schedule a consultation about how we may be of service in your immigration matter. Based in the Albany, NY Capital District area, we assist clients throughout New York, in all 50 states, and worldwide with United States immigration law.

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