EB2 National Interest Waiver 

As a precondition, the individual must first qualify as an advanced degree holder or their equivalent or an individual with exceptional ability in the sciences, arts, or business. 

  

Advanced degree means any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate. A U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty is considered the equivalent of a master's degree.  

  

Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. To demonstrate exceptional ability, the petition must satisfy at least three of the following six categories: 

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1. An official academic record showing that the individual has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability; 

2. Evidence in the form of letter(s) from current or former employer(s) showing that the individual has at least ten years of full-time experience in the occupation for which he or she is being sought; 

3. A license to practice the profession or certification for a particular profession or occupation; 

4. Evidence that the individual has commanded a salary, or other remuneration for services, which demonstrates exceptional ability; 

5. Evidence of membership in professional associations; or 

6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. 

  

Note: If the above categories do not readily apply to the occupation, the individual may submit comparable evidence to establish exceptional ability. 

  

After the above precondition is met, USCIS determinates whether the individual meets the NIW requirement using the 3 prong test outlined in the Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016): 

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1. The individual’s proposed endeavor has both substantial merit and national importance;  

  

The proposed endeavor’s merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture health, or education. Evidence that the endeavor has the potential for significant economic impact may be a favorable, but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact. Endeavors related to research, pure science, and the furtherance of human knowledge may qualify, whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States 

  

In determining whether the proposed endeavor has national importance, USCIS considers its potential prospective impact. An undertaking may have national importance because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.  

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2. The individual is well-positioned to advance the proposed endeavor; and  

  

For the NIW second prong, USCIS considers factors such as the individual’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.  

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3. On balance, it would be beneficial to the U.S. to waive the job offer and the PERM Labor Certification requirements (i.e. it would be more beneficial to the U.S. to grant NIW than protecting the U.S. job market).  

  

The NIW third prong balances the need to protect the U.S. job market against other national interest factors. On the one hand, PERM labor certification was created to create the domestic labor supply. On the other hand, Congress created the national interest waiver in recognition that certain national interest may outweigh the benefits inherent in the labor certification process can be outweighed.  

  

In performing this analysis, USCIS may evaluate whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the individual to secure a job offer or for the petitioner to obtain a labor certification. For example, the labor certification process may prevent a potential employer from hiring an individual with unique knowledge or skills that are not easily articulated in a labor certification. Similarly, it would be impractical for an entrepreneur or a self-employed inventor, when advancing an endeavor on his or her own, to secure a job offer from a U.S. employer.  

  

USCIS may also evaluate whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the individual’s contributions; and whether the national interest in the individual’s contributions is sufficiently urgent to warrant forgoing the labor certification process.