For individuals
EB-2 National Interest Waiver
A waiver of the job offer and labor certification requirements, granted where it is in the national interest. A different question from EB-1A, not simply an easier version of it.
- INA § 203(b)(2)(B)
- Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) — the three prongs, stated exactly
- Current USCIS Policy Manual treatment of the national interest waiver, including any guidance on specific fields
- EB-2 threshold requirements — advanced degree equivalency and exceptional ability criteria
What the category requires
You must first qualify for EB-2 — an advanced degree or its equivalent, or exceptional ability in the sciences, arts, or business. That is the threshold, and it is not usually where cases are decided.
The waiver is then granted where the petitioner establishes three things under a framework the Administrative Appeals Office adopted in Matter of Dhanasar. Because you are asking to be excused from the labor market test, you file for yourself: no employer, no job offer, no PERM.
Authority: INA § 203(b)(2)(B); Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). Verify against the current text before relying on it.
The three prongs
The proposed endeavor must have substantial merit and national importance. Merit is rarely contested. National importance is, and it turns on the potential prospective impact of the work rather than on the geographic scope of your employer or the size of your team. Work that is genuinely valuable to one company frequently fails here.
You must be well positioned to advance the endeavor, judged on your education, skills, record of success in related efforts, a plan for future activities, and the interest of potential customers, users, investors, or other relevant entities. This prong is about you, and it is where most petitions are actually decided.
It must be beneficial to the United States to waive the job offer and labor certification requirements. Arguments here commonly include the impracticality of a labor certification for the work proposed and the urgency or value of the contribution relative to protecting the domestic labor market.
Prongs two and three are where cases are decided
Almost every petitioner can write a persuasive paragraph on merit. Far fewer can document that they specifically — rather than their field generally — are positioned to advance the endeavor, and fewer still address the balancing prong with anything beyond a restatement of prong one.
The most useful discipline is to write prong two first. If the evidence of your track record, your plan, and third-party interest is thin, the elegance of the prong one argument will not save the petition.
How this differs from EB-1A
EB-1A asks about acclaim: are you at the top of your field, and does the field recognize it? The national interest waiver asks about the work: is the endeavor nationally important, and are you positioned to advance it?
Those questions have different answers for the same person. A mid-career researcher whose work maps onto a stated national priority may have a strong waiver case and no EB-1A case at all. A widely acclaimed artist may have the opposite. Neither category is the junior version of the other.
Whether this fits you
your work maps clearly onto an articulated national priority or an identified national need; you have a documented record of advancing similar work; you can show interest from users, customers, funders, agencies, or collaborators outside your own organization; you have a concrete plan for what you will do next.
the endeavor is described at the level of your field rather than your own work; your evidence of being well positioned is credentials without a track record; the national importance argument depends entirely on your employer's commercial success; you have no plan beyond continuing your current job.
A straight answer first
I will tell you in the first conversation whether you have a waiver case, an EB-1A case, both, or a promising record that needs deliberate work before either is worth filing. Filing early is not a free option: it costs money and time, and it can complicate the next attempt.
If you've received a Request for Evidence
National interest waiver RFEs are unusually legible. The request almost always names the prong at issue, and the prong it names is usually two or three.
What these requests typically ask for
- Evidence of national importance distinct from the value of the work to your employer
- A specific, documented description of the proposed endeavor rather than a description of your field
- Evidence of your record of success in related efforts
- Third-party interest — letters or documentation from users, funders, agencies, or customers outside your organization
- A concrete plan for future activities
- Argument and evidence directed at the balancing prong, not a restatement of prong one
Read the notice before anything else. The language an adjudicator chooses usually identifies the specific concern, and a response that sends more of the same material rather than addressing that concern is how an answerable request becomes a denial. Response deadlines are printed on the notice, are short, and are not routinely extended.
I take on responses to requests for evidence, audits, and notices of intent to deny in matters I did not file. Bring the notice and the original filing to the first conversation.
Related
EB-1A extraordinary ability
The highest evidentiary standard of the three, and the shortest path when the record supports it.
Read more →O-1A extraordinary ability
Temporary work authorization with no cap and no lottery. Not a green card, and not self-petitioned.
Read more →EB-1B, for researchers with an employer
Outstanding professors and researchers. No labor certification required.
Read more →Let's talk about your matter.
Consultations are scheduled directly with me. If you're facing a filing deadline or holding a notice with a response date on it, say so first and I'll prioritize it.
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[email protected] · (508) 591-0775 · Kingston, Massachusetts