Introduction to the EB-2 NIW Visa and USCIS Qualifying Criteria

The National Interest Waiver (NIW) is an Employment-Based Second Preference (EB-2) category that enables qualifying individuals to obtain a green card. Applicants seeking this classification must first establish that they hold an advanced degree or exceptional ability through several criteria. United States Citizenship and Immigration Services (USCIS) then considers whether the applicant’s prospective endeavor is of national interest. Lastly, what often makes this route appealing to applicants is the waiver of a job offer or labor certification meaning that they can bypass the PERM (Program Electronic Review Management) process and do not require sponsorship by an employer.

Why Do Applicants Choose The NIW Route?

The NIW pathway has a reputation for allowing applicants to self-petition without an employer or job offer. This flexibility is appealing to many entrepreneurs looking to establish or expand a business in the United States or professionals who are seeking long-term employment in the United States but who either do not have an employer, are running into hiring roadblocks due to lack of permanent residency, or do have an employer who is not interested in pursuing the PERM sponsorship process.

How Can an Employer Support an NIW Petition?

Despite the fact that EB-2 NIW can be self-petitioned, the role of an employer is often overlooked. In some cases, applicants are currently working in the United States for an employer who has sponsored a previous nonimmigrant visa such as H-1B or L-1A. However, the employer may not currently be interested in pursuing and investing in the PERM process which is often time-consuming and a greater liability due to several application phases, risk of an audit, and the involvement of the Department of Labor. In such situations, the EB-2 NIW applicant can make a decision of applying for EB-2 NIW as a self-sponsored, however, it would be good to have the employer on their side to prove that the project they work on brings national interest to the U.S.

If it is in the interest of both the employer and a qualifying NIW applicant to continue the current employment situation, the applicant’s petition will be bolstered by supporting evidence from the employer demonstrating to USCIS that the employer is an operational or successful business and therefore, it is clear the applicant’s employment is secured and they are unlikely to fall public charge. In this situation, the NIW petition may argue that the individual not only has the potential to significantly positively benefit the national interest of the nation, but the discontinuation of their employment would then have an even greater adverse impact to both a U.S. business, the industry as a whole, and subsequently, the United States.

What is the Benefit of an Employer Supporting the EB-2 Visa National Interest Waiver Process?

Ultimately, support from the employer can greatly substantiate and enhance an applicant’s NIW application. Part of the evaluation by USCIS investigates whether the proposed endeavor holds substantial merit and national importance. This may be corroborated by the employer through leveraging of the applicant’s critical role for the business and the company’s important impact or contributions to the industry, economy or society. 

Furthermore, USCIS examines why the applicant should be waived from participating in the labor certification process. It can be argued that the applicant’s exceptional abilities and unique position with the employer cannot be thoroughly or comprehensively articulated in the labor certification process. As a result, it would be impractical for the applicant and employer to partake in the process when it could jeopardize the future of an operating U.S. business and individual who offer key benefits to the United States.

Levels of Employer Support in the NIW Process

Levels of Employer Support in the NIW Process

Due to the flexible nature of the NIW petition, there are multiple ways an individual can request the classification. The most utilized route is self-petition enabling an individual to expand a current foreign-based business, establish a startup, seek employment broadly with any U.S. business, or continue working for a current employer without participating in the labor certification process. 

In this last example, there are two options for employer involvement in the filing process. The employer may support the applicant in disclosing company information that reinforces the merit of the proposed endeavor but opt out of any formal sponsorship of the applicant’s NIW process in the immigration forms. As a result, the applicant would still apply as a self-petitioner but continue to benefit from employer support via letters of recommendation and company documentation. 

Moreover, the employer may also serve as the petitioner for the application. This option requires the employer to review and sign the individual’s NIW forms and provide a letter detailing the proposed endeavor. An employer may prefer to serve as the petitioner if they wish to stay abreast of any pertinent information regarding the applicant’s process or if they would like to receive any processing correspondences.   

What are the Legal or Financial Obligations of the Employer in the NIW Process?

What separates the employer’s role in the NIW process from other employment-based petitions is that there is very little liability in commitment to the applicant’s proposed endeavor. Unlike the PERM process, employers are not required to show proof of financial viability to compensate the applicant or provide any employment contracts or offer letters. The employer is not bound to abide by any formal or contractual relationship with the applicant in terms of position, duties, compensation, or other terms of a typical job agreement. 

Helpful Supporting Documentation from Employers for NIW Applicants

The NIW process requires an applicant to provide a detailed plan and supporting evidence regarding their proposed endeavor and potential impact to an area of national interest in the United States. Employers may help strengthen an applicant’s case by providing documentation such as financial information in the form of annual reports, taxes, or profit and loss statements, proof of operations via contracts, invoices, client or product testimonials, lease agreements of locations, media features, and company website, among others. 

* This article is for informational purposes only and does not provide direct legal advice.

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