U.S. employers and foreign nationals can forego the arduous and lengthy labor certification process if they receive an EB-2 National Interest Waiver (NIW).

An NIW means employers can forego labor certification for an EB-2 green card for foreign nationals with “exceptional ability” in the sciences, arts, or business, or an advanced degree if in the “national interest” of the U.S. (EB-2 stands for employment-based, second preference.)  

A long wait in the EB-2 category still exists for individuals from India and China. However, this could still be a useful option for a spouse who needs an immigrant visa to get a work permit.

What is Labor Certification?

The labor certification process requires an employer or individual to prove to the U.S. Department of Labor that “minimally qualified” U.S. workers are unavailable for the position. The labor certification process is designed to prevent qualified U.S. workers from being deprived of employment and prevent any adverse impact on the wages and working conditions in the U.S.

The labor certification process takes at least six months. The final certification must be included with the EB-2 exceptional ability green card petition and the EB-2 advanced degree green card petition submitted to United States Citizenship and Immigration Services (USCIS) unless an NIW is obtained.

Other NIW Benefits

In addition to reducing the time it takes to go through the EB-2 green card process, an NIW is not tied to the U.S. employer that submits the petition on behalf of the foreign national. That means the individual may change employers as long as the new position is also one that’s in the “national interest” of the U.S. Moreover if a candidate is eligible for concurrent filing of your adjustment of status application, a work permit is usually approved while the green card petition remains pending.

NIW Requirements

An employer or prospective employer in the U.S. can petition for an NIW on behalf of a foreign national or the foreign national can self-petition. To qualify for an NIW, the beneficiary must have either:

• “Exceptional ability” in the sciences, arts, or business—defined as possessing knowledge and expertise that is far above and beyond what is typical in those fields.
• Or at least a master’s or a bachelor’s degree along with a minimum of five years of work experience.

NIW petitions require extensive and compelling documentation written in terms that non-experts in the field can understand. Successful NIW petitions must demonstrate that:

• The work the foreign national will do has “substantial intrinsic merit.”
• The work yields a national benefit.
• The foreign national doing the work provides a far greater benefit to the national interest than a U.S. worker doing the work.

Substantial Merit

NIW petitions must show the benefits and value of the candidate’s proposed work in the U.S. I advise my clients to focus on showing how the work improves the following areas of national interest:

• The U.S. economy
• Healthcare in the U.S.
• The education and training of U.S. children and workers
• The environment in the U.S.
• The preservation of natural resources
• The wages and working conditions of U.S. workers
• Affordable housing for low-income U.S. residents

Evidence for demonstrating the substantial merit may include:

• A letter from the candidate’s U.S. employer describing the work, including the duties, minimum education, training, experience, and credentials required. The candidate may also submit a letter. However, an employer letter is stronger, particularly if it demonstrates the candidate has a key role in a project and the project would be jeopardized without the candidate or if the employer hired a U.S. worker with the same qualifications.
• Coverage in newspapers, trade publications or other media describing the work.
• Letters from experts in the field that substantiate the work and its importance. 

National Scope

An NIW candidate’s work may be done in a particular location. But the NIW petition must show that the work will benefit or impact the entire U.S.

Scientists, researchers, and inventors usually have an easier task of demonstrating their work is national in scope than business executives, artists, or educators. USCIS typically denies the NIW petitions of candidates who work for specific clients or who serve one geographical area.

Evidence to demonstrate national scope may include:

• Coverage in newspapers, trade publications or other media that show or describe the national breadth or impact of the work.
• Contracts, patents, licenses, grants or other funding from the national government or national organizations that illustrate the scope of the work and its impact.
• Letters from current and former employers and experts in the field that substantiate the national importance of the work.

Avoid inadvertently indicating that the candidate’s work adversely impacts other areas or regions.

National Interest

The labor certification process exists to protect U.S. workers and keep job opportunities open to them.

Showing an NIW beneficiary’s work is in the national interest is the most difficult requirement to satisfy. The key: Focus on how the candidate serves the national interest more than others in the field, has a substantial influence on the field, and may contribute in the future.

Evidence may include:

• Coverage in newspapers, trade publications or other media that shows or describes the NIW candidate’s prior achievements.
• Grants or other sources of funding the candidate has received.
• Letters or documents showing how others use the candidate’s work, such as contracts for the candidate’s products, patents, licenses or technology or a request from an interested government agency.

Asserting that employing the NIW beneficiary serves the national interest because a labor shortage exists or because of the important role the candidate will have on an employer’s project are inadequate. In fact, those assertions speak to the need for labor certification.

Letters of Recommendation

I advise my clients to get five to 15 letters of recommendation from experts at government institutions or professional associations. Those who write letters of support for NIW candidates should include their curriculum vitae.

I also advise my clients to suggest to recommendation letter writers that their letter should:

• Use simple, non-technical language.
• Explain the relationship with the NIW candidate, particularly if the writer does not know the candidate personally. USCIS considers letters written by people who don’t know the candidate more objective and indicative the candidate’s work is widely known.
• State specifically how the writer became aware of the candidate and the candidate’s work.
• Explain the candidate’s work that is most familiar.
• Describe what sets the candidate apart from others in the field.
• Focus on specifics and the candidate’s narrow field when comparing the candidate to peers.
• Refrain from offering general comments, compliments or only a brief description.

An attorney can help you put your best foot forward throughout this complicated process.  Our team offers an individualized strategy to ensure that happens.