National Interest Waivers for Advanced Degree Professionals/Aliens of Exceptional Ability

To apply for an EB-2 National Interest Waiver (NIW) petition, an applicant must first qualify either as an "Advanced Degree Professional" who holds an academic or professional degree above the baccalaureate level, or as an "Alien of Exceptional Ability" who holds a degree of expertise significantly above that ordinarily encountered in the alien’s profession.

A person of exceptional ability must substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States because of his or her exceptional ability in the sciences, arts, or business. In order to establish exceptional ability, an applicant must submit evidence of at least three of the following six items:

• Academic records showing that the individual possesses a degree relating to the area of exceptional ability;
• Letters from current or former employers showing at least ten years of experience;
• License to practice his or her profession in the U.S.;
• Evidence that the individual has commanded a high salary or remuneration demonstrating exceptional ability;
• Membership in professional association(s); and,
• Recognition for achievements and significant contributions to the industry or field by his or her peers, governmental entities, or professional or business organizations (i.e. documentation of receipt of major prizes or awards for outstanding achievement; published materials in professional publications written by others about the applicant’s work; evidence of participation as the judge of the work of others; evidence of authorship of books or articles, etc.)

In addition, in order to qualify for the NIW, an applicant must satisfy the requirements of the three-prong test laid out in the precedent decision, New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) ("NYSDOT").  In this case, the Commissioner established three (3) factors for determining whether a particular endeavor constitutes employment "in the national interest" for the purpose of adjudicating employment-based second category immigrant visa petitions. The factors to be considered when evaluating a request for a NIW are:

• Whether the applicant seeks employment in an area of substantial intrinsic merit;
• Whether the proposed benefit of the applicant’s contribution will be national in scope; and
• Whether the national interest would be adversely affected if a labor certification were required for the applicant.  

Lastly, the NIW petition must be accompanied by clear evidence which demonstrates that the applicant is coming to the United States (or will remain in the United States) to work in his/her area of expertise.

A critical advantage to qualifying for permanent residency under this category is that neither a job offer nor a labor certification is required.  Rather, Form I-140, Petition for Alien Worker, is filed as a self-petition at the USCIS.