The National Interest Waiver (NIW) is an exception provided under the EB-2 Employment-Based immigration visa classification. If granted, it allows the recipient of the waiver to obtain work authorization without a job offer, but also without having to go through the Program Electronic Review Management (PERM) system used for the Labor Certification process.[1] The recipient will not only have work authorization but also have a path to lawful permanent residence under the EB-2 immigration classification.
USCIS Administrative Appeals Office (AAO) announced the modern analytical framework used to determine whether foreign nationals qualify for the national interest waiver. In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), a new test was developed to be granted a NIW.[2] Under a preponderance of the evidence standard, the employer or foreign national must show:
- The work of the applicant must have “substantial merit” and must be of “national importance.”
- The applicant must be well-positioned to advance the proposed endeavor.
- On balance, it would be beneficial to the United States to waiver the requirements of the Program Electronic Review Management (PERM) system used for the Labor Certification process.
Recent Trends in the Economy and How a National Interest Waiver Could Substantially Benefit the United States
The COVID-19 Pandemic has caused severe disruptions in industries that span across the United States. With crippling effects on local economies, the pandemic has caused reverberations across many industries in business, sciences, technology, culture, health, and education. With the unemployment rate peaking in April 2020 at 14.8%, the US economy has made waves to recover back to its pre-pandemic numbers of sub 4%.[3] Nevertheless, these numbers only paint a small story that hides how industries are individually affected. While some companies have recovered or progressed to greater levels before the pandemic such as some of those in the growth-centric technology companies, some are still in disarray such as restaurants and other eating and drinking establishments. In 2020, over 110,000 eating and drinking establishments closed unable to keep up with the cultural shifts caused by COVID-19.[4] In 2021, the restaurants are still performing at sub-optimal levels paving way for new actors to come in and substantially benefit the United States.[5]
As the country recovers from COVID-19, the economic requirements of the United States has paved the way for those interested in substantially benefitting the United States through the EB-2 National Interest Waiver. While visas usually require a specific set of elements to be met in order to qualify, the national interest waiver is an organic system that evolves with the needs of the United States.
Interested in Pursuing the EB-2 National Interest Waiver Visa?
Currently with the United States in recovery, immigration experts have seen a shift in the kinds of national interest waivers being granted. Those with cases involved in opening a business to improve the economic conditions of the United States such as hiring and maintaining U.S. employees have found marked success in their visa applications. Additionally, there have been improved success rates in national interest waivers applied towards improving the economic conditions of need-based communities. These areas of focus for NIW applicants have been only some that have come to light in the post-pandemic world for the ever-evolving National Interest Waiver. While a national interest waiver and a green card application have been submitted, the applicant may also apply for work authorization or another visa such as an H-1B or L-1 visa opening the opportunities for the applicant.
The best way to approach the EB-2 National Interest Waiver Visa is knowing what the applicant has to offer to the United States and setting realistic expectations. It is the responsibility of the applicant to review the conditions of the United States, using experts if needed and putting in due diligence to see where the applicant is needed– and in this case, where the United States has a need.
With the right expectations and the right cards, the applicant has a strong case for a national interest waiver under the EB-2 immigrant visa classification. Keying in on the new opportunities is the first part of the process and will be unique to each situation.
If you are interested in pursuing the EB-2 visa classification and the national interest waiver, please reach out to our knowledgeable staff at International Legal and Business Services Group, LLP.
[1] https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2
[2] https://www.justice.gov/eoir/page/file/920996/download
[3] https://www.bls.gov/news.release/pdf/empsit.pdf
[4] https://fortune.com/2021/01/26/restaurants-bars-closed-2020-jobs-lost-how-many-have-closed-us-covid-pandemic-stimulus-unemployment/
[5] https://www.cnbc.com/2021/01/09/restaurant-industrys-recovery-stumbles-in-december-as-transactions.html