National Interest Waiver Applicant (NIW) Guide

An all-inclusive guide for NIW

National Interest Waiver (NIW)

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Before we get started…

Applicants for the National Interest Waiver (NIW) should know that they are applying for this waiver in the category of EB-2 Advanced Degree or Exceptional Ability. So you need to meet the EB-2 requirements first.

Processing Time

While other applications, such as the green card, have lengthy processing times that vary depending on consular processing, or domestic application status with the USCIS, or whether an individual is married to a U.S. citizen or LPR, the processing time for an NIW is pretty standard across the board.

Note: This does not include wait times accrued due to Priority Dates via the Visa Bulletin.

Currently, applicants who submit an NIW will receive a receipt of their I-140 in 2-3 weeks. That is the most current estimate even with Covid-19.

From that point, processing times may vary depending on which service center jurisdiction the applicants file the case to. The current processing time at the Texas Service Center is approximately 10.5 months and the current processing time at the Nebraska Service Center is approximately 9 months. You will receive an approval notice in the mail or via the USCIS online portal. At this point, you can file an I-485 if you have not already done so. You can file I-485 when your priority date is current.

However, USCIS may issue an RFE if the immigrant officer believes further evidence is needed to make a decision on the case, the applicant will have to respond to the RFE before the deadline stated in the letter, and usually the deadline for responding to the request for evidence is within 90 days.

Estimated Costs

Technically, the cost breakdown will include the application for a green card, although the actual NIW EB-2 applicant is only initially paying for the submission of their I-140 Self Petition.

The costs are as follows:

I-140 Petition for Alien ($700)
ETA 750B (free of cost)

The separate costs that will be incurred by the applicant when they have a visa number available and are able to file their I-485 application:

I-485 Adjustment of Status ($1140)
Biometrics Fee ($85)
Green Card Medical Exam (Avg. price of $200, could vary depending on vaccination record)

Thus, for an approved NIW, the applicant is looking at a fee of $700. For both a green card and approved NIW, the applicant is looking at a fee of approximately $2,125 USD. This does not include airfare from a foreign country to the United States.

What is a National Interest Waiver?

NIW is a petition for an employment-based immigrant visa under the second preference (EB-2). NIW is a provision within the United States immigration law that allows certain foreign nationals to bypass the cumbersome labor certification process typically required for employment-based green cards (EB-2 category). This waiver is available for individuals whose work is deemed to be in the national interest of the United States.

The NIW is primarily intended for individuals with exceptional abilities or those who possess advanced degrees (such as a Master's or Ph.D.) in their field. However, it is not limited to these categories and can apply to individuals in various fields, including science, technology, engineering, mathematics (STEM), healthcare, business, education, and others.

It's important to note that the National Interest Waiver is discretionary, and each case is evaluated on its individual merits. Therefore, you should provide strong evidence to support their eligibility and demonstrate how your work benefits the United States in a significant way (national interest).

What are the Legal Requirements for NIW?

As far as filing documentation and forms with the USCIS, all applicants are still obligated to tell the truth on any application filed, and discovery of fraud could lead to the applicant being placed in removal proceedings or deportation.

Additionally, admissibility requirements per the I-485 Adjustment of Status are applicable to any applicant who will file for a green card after having their EB-2 NIW approved. These legal requirements include:

That the applicant does not previously have an EWI—Entry Without Inspection into the United States
That the application has never overstayed their visa in the U.S. or been previously deported
That the applicant is not likely to become a public charge
That the applicant has never been affiliated or a member of a totalitarian party (or Nazi party)
That the applicant has never engaged in drug trafficking or smuggling
That the applicant is not violating any health-related grounds

What is the three-pronged analytical framework for NIW:

Following an AAO decision (Matter of Dhanasar) issued on December 27, 2016, USCIS has established a new analytical framework to assess eligibility for NIW. Applicants who meet the three-pronged assessment for the National Interest Waiver (NIW) are eligible for an exemption from the job offer prerequisite.

To get I-140 approval under NIW, you will need to prove that you meet the three-prong test established by the precedent decision in Dhanasar (December 27, 2016):

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
The foreign national demonstrates it would benefit the United States to waive the job offer and labor certification requirements.

What is “National Interest”?

The concept of "national interest" in the context of a National Interest Waiver (NIW) refers to the interests and priorities of the United States as a whole. The Immigration Act of 1990 states that the standards for a national interest waiver are “significantly above that necessary to prove prospective national benefit.” It encompasses various aspects that contribute to the well-being, security, prosperity, and advancement of the nation. When applying for an NIW, you must demonstrate how your work benefits the national interest of the United States in a significant and tangible manner. Factors that have been considered in successful cases include:

The foreign person’s admission will improve the U.S. economic growth and competitiveness:
The foreign person’s admission will improve the U.S. national security and defense, healthcare and public health, environmental sustainability and climate action, etc, and all that lead to more productive use of the national resources.

Required Documents (for NIW Application)

NIW applicants should have the following documents attached to their application, which they should either upload via their USCIS account or attach to their package they mail to a USCIS lockbox, with the fee attached:

Completed I-140
Highest advanced degree’s official diploma and official transcripts, as well as a degree evaluation report, if necessary
2 Letters of Recommendation (letters of recommendation from experts in the field explaining your research and its implication and significance to the United States)
Publications & Citation Records
Any other evidence of records of success in the field of study (Government funding/grants, notable membership, awards, patents, commercialized patents, certificates, licenses, or other credentials)

Review of Timeline

1. Submit I-140 as a self-petitioner. Wait for 2 to 3 weeks from USCIS for receipt of application

2. Wait for 3 to 9 months for either approval, rejection, or RFE from USCIS.

3. Decide if you would like to hire an attorney for providing additional evidence to your case.

4. Submit evidence. Wait 60 days for a final response to the initial RFE. If a response has not been made within 90 days, please reach out to the USCIS Contact Center at 1-800-375-5283.

5. Check Visa Bulletin under EB-2 Second Preference for Priority Date.

6. File I-485 Application when a visa number is available.

Tracking via USCIS Online Account or via Mail

By Mail:

USCIS will send out official notifications regarding your case, so make sure your mailing address is correct and reachable.

Online:

Log into your USCIS account, view the status of your application. Make sure to see if an RFE has come after the 3-month mark.

By Phone:

Be sure to reach out to the USCIS Contact Center if you feel as though something has happened with your application. The number is listed above at 1-800-375-5283.