The National Interest Waiver

Posted February 6, 2018


  • Immigration and Nationality Act (INA) §203(b)(2)(B)
  • 8 USC §1153(b)(2)(B)
  • 8 CFR § 204.5(k) et. seq.
  • Adjudicator’s Field Manual (AFM) 22.2(j)(4)
  • Matter of New York State Dep’t of Transportation (NYSDOT), 22 I&N Dec. 215

The National Interest Waiver (NIW) is a sub-category of the Employment-Based (EB) 2nd preference immigration category.  The EB-2 category allocates immigrant visas (i.e., grants of Lawful Permanent Resident (LPR) status, aka green cards) at an annual level equivalent to 28.6% of all worldwide immigrant visas (approx. 40,000 per year), plus any unused immigrant visas from the EB-1 category.  EB-2 is generally reserved for “members of the professions holding advanced degrees” or persons of “exceptional ability” (as opposed to the more stringent “extraordinary ability” requirement for the EB-1 category).

There are two significant differences between the EB-1 and EB-2 categories.  First, qualifying foreign workers may self-petition for LPR status in the EB-1 category – that is, petition for LPR status without a standing job offer from a U.S. employer – if claiming eligibility as a person of extraordinary ability, or as a multinational executive or manager.  Workers in the third EB-1 sub-category, outstanding professors or researchers, must have a tenure or tenure track offer from a university or institute of higher education, or a private employer actively engaged in the research, thus may not self-petition.

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