Generally, obtaining an employment-based green card can be a long and extensive process that requires an employer’s sponsorship, labor certification, and petitions. However, there are two types of green cards that allow an employee to self-petition and avoid the job offer and labor certification requirements: EB-1 Extraordinary Ability and EB-2 National Interest Waiver.
Employment-based, second preference petitions typically require an approved labor certification from the Department of Labor, and an employer to file a Form I-140. The National Interest Waiver (NIW) allows a foreign national to self-petition and file his/her own I-140, avoiding the PERM labor certification process and involvement of an employer. Essentially, a foreign national filing for a NIW is requesting that the labor certification be waived in the interest of the United States.
In order to qualify for EB-2 NIW, a foreign national must demonstrate that he/she has exceptional ability and his/her employment in the United States will greatly benefit the nation. Jobs that qualify under the NIW are not defined by statute, and for decades, the Secretary of Homeland Security’s discretionary authority to grant the NIW was severely hampered by the framework laid out in the case of Matter of New York State Department of Transportation (NYSDOT).
On December 27, 2016, the Administrative Appeals Office (AAO) vacated NYSDOT and adopted a new framework for adjudicating the NIW in Matter of Dhanasar. This revision created greater clarity and flexibility for the broad discretionary waiver provision in order to benefit the United States. Under the AAO’s decision, qualification for the NIW requires the foreign national demonstrates by preponderance of the evidence that:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and labor certification.
This new framework created a more inclusive balancing test for a broader range of potential scenarios, to be more flexible on application to a wide range of individuals in fields such as business, entrepreneurism, science, technology, culture, health, and education.
If you are interested in the National Interest Waiver, Reddy & Neumann, P.C. would be happy to review your qualifications and help guide you in the self-petitioning process.