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How to Earn an American “Green Card” without a Job Offer - Part 1

The “National Interest Waiver” (or “NIW”) is a test for U.S. permanent residence. To succeed, you must show that your professional work will bring important benefits to the "national interest" of the United States. You do not need to have a U.S. employer, but you must show that you will continue your professional work, and that it will bring a significant benefit, in the United States.

There is a two-part screening, to determine if you qualify for the NIW.

Part one: You are either (a) a "member of the professions holding an advanced degree”[1] or (b) an "alien of exceptional ability in the sciences, arts, or business."[2] These are the baseline requirements for the “EB-2” category for permanent residence.

If you can meet these baseline EB-2 requirements, then you must prove that it would be in the “national interest” of the United States to waive, or set aside, the usual requirements of (a) job offer and (b) testing of the U.S. job market (“labor certification”).


By "national interest," we mean this three-step test:

  1. The work you will do in the United States involves a project with both substantial merit and national importance; and

  2. You will play a critical role to carry out the work that will advance the project; and

  3. It makes sense for the U.S. government to exempt you from the standard legal requirements; namely, a job offer by a U.S. employer and a testing of the labor market to prove that U.S. workers are not adversely affected by the offer of employment to a foreign national. In an NIW case, the job offer and labor testing are waived.

If these three elements are satisfied, USCIS may approve the national interest waiver -- and U.S. permanent residence -- as a matter of discretion.

A common misconception is that the NIW is reserved for scientists and academics. It is not; many cases have been approved for individuals in such diverse fields as the performing arts, amateur and professional athletics, applied arts such as photography, and business development.

The key, of course, is to persuade the authorities that your work will bring a benefit of “national interest” to the United States. In the next installment I will offer an overview of how the standard is currently interpreted, by profiling several successful applications.

By way of example -- and to give the reader an idea of the limitless potential, and diversity, of the National Interest Waiver -- one of my own cases was for a martial arts instructor, now in California, who has brought physical fitness classes to help the aged and disabled and has taught better, safer techniques to athletes in training. Another success was a self-taught photographer who applied her skills to advocating for the conservation of the natural environment -- including the night sky.

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Notes

[1] An “advanced degree” is a fairly flexible term and it means your formal U.S. or foreign degree at the master’s level or above, or the equivalent in terms of your formal U.S. or foreign degree at the bachelor’s level plus at least five years of progressive employment/experience.

[2] “Exceptional ability” is defined as “a degree of expertise significantly above that which is ordinarily encountered.” To show that you have exceptional ability in the sciences, arts – including athletics -- or business, your application must be supported by documentary evidence of academic or experience-based credentials and recognition for achievements in your field of endeavor.


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