The Immigration Act of 1990 created a previously unavailable mechanism for obtaining employment-based permanent residency: National Interest Waiver (NIW). National Interest Waiver is a waiver of the job offer requirement and labor certification application, if the alien can prove that he or she is:
- Alien of exceptional ability OR an advanced degree professional; AND
- Involved in an activity which could benefit the national interest.
National Interest Waiver based immigrant visa application falls under employment-based 2nd preference (EB-2).
In short, applicants for National Interest Waiver ("NIW") must show that if they
are granted permanent residence, their work will substantially and prospectively
benefit the economy, culture, or educational interest or welfare of the U.S. CIS
has set forth the general factors which will be considered in connection with a
National Interest Waiver application. These factors include whether granting the
waiver will:
- Improve the U.S. economy;
- Improve wages and/or working conditions for U.S. workers;
- Improve health care;
- Improve education or training programs for US children and under-qualified workers;
- Provide more affordable housing;
- Improve the environment and assist with the conservation of natural resources;
- Upon request of an interested government agency.
On August 7, 1998, the INS issued a decision in a case known as In re New York State
Department of Transportation (NYSDOT) in which it clarified the standard for NIW
cases. Under the NYSDOT standard, a National Interest Waiver applicant must provide
evidence which addresses eligibility under each of the following categories:
- The applicant must show that the prospective employment is in an area of "substantial intrinsic merit";
- The benefits of the applicant's employment are "national in scope";
- The applicant must show that the national interest would be "adversely affected" if a labor certification were required.
