What is Green Card through National Interest Waiver, Conversations with our Community

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Why National Interest Waivers (NIW) may not work for Indian Immigrants?

People born in India or other countries that have severely backlogged priority dates may not find the national interest waiver to be the best option, despite its advantages beyond just obtaining a green card quickly. Firstly, the national interest waiver falls under the EB-2 category, which requires applicants to have an advanced degree, meaning a degree that is obtained after a bachelor's degree. This could sometimes be a second bachelor's degree and not necessarily a master's degree. However, if the requirement for the second bachelor's degree is that you must previously have a bachelor's that is considered to be an advanced degree, then you must have either an advanced degree or equivalent experience, typically five or more years of progressively responsible experience.

The national interest waiver is governed by EB-2 category priority dates since it falls under this category. Therefore, if the priority date for EB-2 is backed up to 2013, then it is also backed up for national interest waiver applicants. While you can obtain your I-140 right away, you cannot file the last step of the process until the priority dates become current. However, despite the long backlog for Indian applicants, the national interest waiver has advantages. Firstly, it is not based on a specific job, so you have mobility and can take your case and H-1B visa with any employer you choose. Moreover, because your I-140 is approved, you can keep getting extensions beyond six years on your H-1B visa with any employer.

So those are the two main advantages - mobility and the H-1B extension. 

Understanding National Interest Waivers

The National Interest Waiver is a waiver of the job requirement. Normally, when you file an EB-2, you must have a job offer and cannot be in the United States without a specific job. You go through the PERM process and choose a job, such as software developer, systems engineer, civil engineer, etc. National Interest Waiver says, "No, we'll waive that requirement because you are so important for us." So then the question becomes, "What makes you so important?" Firstly, the work that you plan to do must be of national importance in the future, once you obtain your green card. Secondly, it must be in the interest of the United States.

This is one of the fuzzy areas where the policy that the USCIS has announced says, "Look, we don't look at the geographical impact only." Sometimes, you can be working in an area that's important to the government, even though your work is local. Let me give you an example of a case we recently handled. We filed a National Interest Waiver for a scientist working at an Ivy League University. Her boss asked us to file the National Interest Waiver for her because she was born in a country other than India.

She had a PhD and was working in a field related to immunotherapy for autoimmune diseases. If I remember correctly, she specialized in treating autoimmune diseases.

Let's consider her case. She works for a university, which means her research is available to the whole world. She is researching an area where there is a high incidence of autoimmune diseases, and these diseases are on the rise. Although she is only working for one university, her work has an impact on the entire country.

Her National Interest Waiver (NIW) was granted without even a Request for Evidence (RFE). No questions were asked because she had a PhD and her work had national importance. 

We have handled a series of cases in the energy sector as well, where people working in this area have been successful in obtaining NIWs. Recently, we completed a case for a local university in Washington DC where the individual was teaching design and had some remarkable ideas. National impact is one part of the National Interest Waiver.

How about the environment?

I had a case a couple of years ago where the individual was an architect working on green buildings. We were able to get his case approved quite easily because he worked for an employer who made buildings for state governments. He had designed buildings for several state governments, and we were able to demonstrate that he had done green building work in at least three or four states. You don't have to be unique or the only person in the world who can do it. You just need to have work that is beneficial to the United States, not necessarily the government. That's the first point. 

The second point is there's interest in the United States in your work. What does that mean? This brings us to two points. First, you could have a future project in mind. For example, many years ago, we had a client who had developed an interesting edible packaging for fast food. The idea was that you would eat the chips first, then you could eat the packet. Although he had no job in the United States and nothing in the country, he had the patent for that technology. Several U.S. companies had expressed interest in his invention and had given him memorandums of interest, stating that they wanted to be a part of the project if he started it in the USA. So, although the client was based outside the USA, a couple of companies showed interest in his project. This demonstrates that there is interest in the United States.

Going back to what we first discussed - national importance and interest in the United States. It can be a current job or a future job. The third point is the easiest one - you are well positioned to fill the job. That means you can do the work. Of course, you can do the work, and that has never been a major issue. The last point is a legal issue rather than a technical one. It's a question of law. On the one hand, we have an interest in protecting the US workforce by not allowing ordinary people to enter the country for work that could be done by U.S. workers. On the other hand, it's in the best interest of the United States to bring in the best-qualified people for certain jobs.

So there's a balancing test, and that test is basically more of a legal issue than a technical issue. Once again if your work is of national importance, this one is relatively easy to prove. Okay, so that's what a national interest waiver looks like. Four things: one, there is work of national importance intrinsically; two, the person, or you, can prove that there's interest in the United States in your work; three, you're well qualified to do the job, never an issue; and four, the legal argument about why labor search should not be required.

Further Questions: 

Question:What are the criteria for qualifying as a National Interest Waiver (NIW) candidate, and would someone working in the technology field and joining a company part of the National Cyber Security Alliance be eligible for an NIW based on their interest in the cybersecurity domain?

I think so. For example; In the energy sector, there was a geological engineer. He had used an array of sensors to create a mechanism that could predict earthquakes and seismic activity far more accurately and ahead of time than the current technology. However, this technology was locked into a particular company that held the patent to it. The National Interest Waiver (NIW) was denied because they argued that there was already sensor technology available and that the work he was doing was not going to be deployed generally, but rather confined to this one particular company.

But if this decision had happened under NIW, I think it would be incorrect. The focus should be on protecting people from seismic activity, not who owns the patent. His work has helped protect people, and that's what matters. The same principle applies to cybersecurity, which is undoubtedly a matter of national interest.

If you or your employer are part of a conglomerate dedicated to protecting our cyber borders, a case can be made that your work is in the national interest. This is especially true if you can demonstrate that what you are doing is cutting-edge cybersecurity work, although that's not required by the NIW criteria.

Question: Just two days ago, my OPT got approved, and my future employer, whom I'm joining in May, is planning for H-1B lottery. If my application is selected, I will apply for a change of status to H-1B, and my employer might also file for a green card on my behalf. However, if my application is not selected, what would be your best suggestion? Should I wait for the next lottery or should I apply for a National Interest Waiver (NIW)?

Now, remember, there are two different considerations here. One is: how do I work tomorrow? And two, how do I get my green card? These are two different things. 'How do I work tomorrow?' is determined by your H-1B or OPT, etc. So, if you apply for an NIW, that's not going to help you tomorrow. It's going to help you in 15 years when you get your green card, 10 years, or whatever the time is. So, what you need to do is worry about both: 'What do I do about tomorrow?' and 'What do I do about my green card?' For tomorrow, you could go back to school, get more education, and participate in curricular practical training. Remember, you want to enhance your career, not just keep getting CPTs. So, if you go back to school, get something that will help your career so that if ever questioned (although this is legal), we can argue that this was the enhancement of your career.

Filing an NIW is not a substitute for an H-1B for people other than those whose countries are backlogged. So, if your country is not backlogged, then, of course, NIW is a good option.

Question: Can the visa validity of a NIW application be extended in a typical EB-2 scenario, if it takes two or three years to reach the stage to get the visa and if so, in how many intervals can it be extended?

Right, because the dates don't move from month to month. Dates move six months for one month advancement in the priority date. But balance that against the point that NIW is not a guarantee. You can never predict whether it's going to work, but it's certainly worth a try. If your job involves sensitive areas on a national level and meets the criteria, I would definitely do it. There's no question about that.

Question: What if it is denied? Will it have any future ramifications like on my future green card applications or anything else?

No, you can file an NIW a thousand times or more if you want. You can also file an NIW plus any other green card category a thousand times. The only category I have a problem with is if you file an NIW and, for the same job, file a PERM application. This could be a problem because one of my arguments is that this job should not be made to go through, as it would result in a self-denying filing. So, that's one thing I would avoid. Other than that, yes, it's a good idea. The downside of any green card is simply this: if you have exhibited immigrant intent, it might be difficult to get visas where non-immigrant intent is required, such as for future students. But if you don't need those, then there's zero loss other than the cost of filing the application.

Question: When the OPT is approved, and an H-1B is being filed, what should I do? Should I wait and see if it gets picked up before making my next move?

I personally think that waiting two or three more weeks is not going to kill your case.

Question: I had a previous H-1B with a different employer and I am left with around two months of physical stay in the US on that petition. So, I have not completed the full six years. Is this going to help me in any way or will it be of no help?

You have two options: either be exempted from the lottery for the two months of H-1B or be outside of the USA for one year after the H-1B to reset the H-1B clock to six years and then apply through the lottery.


For additional resources on NIW, please visit this link below:  


Nonimmigrant Visas


Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Submitted by Ashwin Pande (not verified) on Fri, 03/10/2023 - 13:33 Permalink

This is good topic and thank you for the explanations. few questions I would like to add Rajiv Khanna 1) is getting i140 through NIW useful for people already having Priority date from employer submitted petition (and H1 visa), but want to be independent of the employer in case of lay offs. 2) does H1 visa get transferred to self petition or it's some different visa altogether? 3) how does salary and insurances etc. for that person and his family works? is it W2 or 1099? 4) Will spousal h4-ead remain same, or have to apply again under new i140 after the transfer (assuming there is h1 transfer or equivalent process)

This answer is for information purposes only and does not create an attorney-client relationship.

Note: Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments, blog and community calls on immigration.com. Where transcribed from audio/video, a verbatim transcript is provided. Therefore, it may not conform to the written grammatical or syntactical form.

Some FAQ on National Interest Waiver
Q1) Is getting i140 through NIW useful for people already having the priority date from employer-submitted petition (and H1 visa), but want to be independent of the employer in case of layoffs?
A1) NIW makes you independent of any job offer. To that extent, it is useful. But you are still stuck in the EB-2 category, which is not very useful for the India-born.

Q2) Does the H-1B visa get transferred to self-petition, or it's some different visa altogether?
A2) The criteria for the grant of an H-1B do not change, specifically the employer-employee relationship, which is difficult to establish in a self-owned business.

Q3) how does salary, insurance, etc., work for that person and his family? Is it W2 or 1099?
A3) All that and getting and maintaining an H-1B is a problem separate from the NIW. You will need an H-1B to work while you wait for the green card unless you are outside the USA.

Q4) Will spousal H-4-ead remain the same, or do we have to apply again under the new i140 after the transfer (assuming there is an H-1B transfer or equivalent process)
A4) There is no impact of the NIW on any of your rights under the H-1B process.

This answer is for information purposes only and does not create an attorney-client relationship.

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