There is no precedent set by the United States Citizenship and Immigration Services limiting which jobs qualify for a National Interest Waiver. Theoretically speaking, any occupation qualifies for an EB-2 NIW visa. The USCIS has, however, established strict criteria for applicants seeking an EB-2 NIW visa.
Put simply, jobs held by professionals with the following characteristics qualify for a National Interest Waiver:
The USCIS uses specific factors to ascertain whether the applicant’s work is of national interest. When the outcome is favorable, the USCIS will waive the job offer requirement.
There are three National Interest Waiver criteria which must be satisfied by individuals seeking the waiver, other than evidence of an advanced degree. If no advanced degree exists, the applicant must prove exceptional ability in his or her profession. The criteria are as follows:
A foreign national whose occupation benefits the economy of the United States, whether in the educational or healthcare systems, or in another aspect of society. The two main criteria are:
According to the USCIS employment-based visa policy manual exceptional ability is defined with the following guideline:
Furthermore, individuals applying for an EB-2 National Interest Waiver must prove the substantial merit of his or her proposed endeavor in areas such as the following professions:
As such, applicants tasked with proving his or her proposed endeavor as being substantially merited, he or she must provide a description of the proposed endeavor as well as a detailed reasoning such merit is substantial. Additionally, the relevant evidence must support the petitioner’s claims and establish merit to his or her proposed endeavor.
Examples of substantiation include, but are not limited to the following:
The level of degree to consider when applying for an EB-2 NIW is an advanced degree. Such a degree must be higher than a Bachelor’s, so it does not necessarily mean a Master’s degree.
If the petitioner has a Bachelor’s degree (or a foreign equivalent) but no degree higher than a Bachelor’s, the exceptions are as follows:
Having said that, the following occupations may qualify for a National Interest Waiver under the second-preference employment-based visa:
It is important to remember, applicants with the above professions will not automatically qualify for an NIW. EB-2 NIW applicants must provide evidence of exceptionalism in their profession, as well as how his or her employment in the United States benefits the country.
The answer to this question is somewhat nuanced. The basis for such qualification requires the applicant to have substantial merit and prove his or her employment in the United States is of national interest. While this is the guideline, there is some flexibility in the NIW visa category, as substantial merit and national importance are not clearly defined. Focusing one’s attention to the specific question of which jobs qualify narrows the answer. The emphasis should be placed more so on whether the applicant themselves qualify.
Substantial merit generally involves the improvement of the United States economy. Perhaps benefiting the wages or the working conditions of workers in the U.S. or contributing to the healthcare or educational sectors. Likewise, proposing an endeavor which improves access to affordable housing, or any other advantageous contributions to the environment.
Examples of substantiation include, but are not limited to memberships, awards, publications by or about the applicant, evidence of others relying on the foreign national’s work, letters of recommendation, patents, contracts, professional licenses, governmental grants.
Individuals are most likely to qualify for a National Interest Waiver when they can demonstrate exceptional ability in their field and how their work serves as national interest to the U.S., as well as provide evidence of an advanced degree in his or her profession. If the applicant does not have an advanced degree (not necessarily a Master’s) then he or she must prove exceptional ability in the sciences, arts, business, or may be a professional athlete.
All NIW applicants must satisfy the three NIW criteria as defined in the Matter of Dhanasar decision test, such as the proposed endeavor must be of substantial merit and national importance, the applicant should be well-positioned to further their proposed endeavor, and the applicant’s proposed endeavor is of significant benefit to the United States.
There is no set standard for professions which qualify, by default, for a second-preference employment-based National Interest Waiver visa, however many individuals have been granted an NIW in occupations such as aviation, enterprise, entrepreneurship, science, technology, medical, dental, engineering, law, urban development, and consulting.
The labor certification process requirement, where a company must advertise its newly available position, and make a good faith effort to find a suitable U.S. citizen to employ, is waived.
There is no requirement for having a job or sponsor. Applicants can self-petition if they don’t have a job or their employer refuses to file on their behalf. There is no requirement for a labor certification process (PERM). Furthermore, it is exceptional ability, not extraordinary ability which must be demonstrated.
All supporting documentation which demonstrates the applicant's qualifications for the waiver must be filed with the applicant's I-140 petition (to the USCIS) either from the applicant's employer or by the petitioning applicant.
Mostly all countries have a current priority date, with the exception of applicants born in China and India. As such, Chinese and Indian applicants must have a current EB-2 priority date in order to file his or her Adjustment of Status (Form I-485) with their Immigrant Petition for Alien Worker (Form I-140).
The difficulty lies predominantly with the applicant’s ability to demonstrate the proof of substantial merit that his or her proposed endeavor has, and how he or she is exceptionally qualified for a role which serves as a benefit to the United States. Unfortunately though, all cases are handled differently by each individual immigration officer. If the evidence is accurate, persuasive, well-documented, substantially merited, and benefits the United States, there is a high probability of getting approved.