Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick walks you through the top 5 most common mistakes and misconceptions made by EB-2 National Interest Waiver applicants and how you can avoid them.
Want to know more? Just keep on watching.
First, let’s discuss, what exactly is the National Interest Waiver?
The National Interest Waiver is part of the employment-based, second preference visa category for individuals who can demonstrate that they hold either an advanced degree or have exceptional ability in their proposed field or endeavor. Essentially, a National Interest Waiver allows an applicant to seek an exemption from the labor certification process, and bypass the job offer requirement typically required for individuals seeking an employment-based green card. National Interest Waivers are granted to those who can demonstrate that their employment in the United States would greatly benefit the nation. The main advantage of the National Interest Waiver is that applicants can self-petition and do not need an employer to sponsor them. This is enormously beneficial when considering that the labor certification and recruitment process on its own can take a considerable amount of time to complete.
Furthermore, the 2016 ruling in Matter of Dhanasar introduced a brand-new framework for adjudicating National Interest Waiver petitions which broadened the pool of eligible applicants who could receive a National Interest Waiver. Under the new standard, an NIW may be approved if it can be proved that (1) the foreign national’s proposed endeavor has both substantial merit and national importance; (2) the foreign national is well-positioned to advance the proposed endeavor; and (3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. The Dhanasar court clarified that to meet the third prong, the applicant must show that in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification.