NIW: National Interest Waiver
How the labor certification requirement is waived for work that benefits U.S. national interest
What is NIW (National Interest Waiver)?
The National Interest Waiver (NIW) is an EB-2 category that waives the labor certification requirement if you can demonstrate that your work is in the national interest of the United States. Unlike regular EB-2, you do not need employer sponsorship or PERM labor certification.
NIW allows self-petitioning for individuals whose work has substantial merit and national importance, making it one of the most flexible paths to permanent residency for professionals and researchers.
The Labor Certification "Waiver" - Appendix A
What is Appendix A?
When filing an NIW petition, you must include Appendix A: Application for Permanent Employment Certification with your I-140 packet. This is the ETA Form 9089 (the same form used for regular PERM), but with special handling:
1. Fill Out Most Fields
Complete applicant information, employer information (if applicable), job title, duties, education requirements, experience requirements as you normally would.
2. Leave Section H Blank
Section H is "Final Determination" where DOL would normally sign and certify. For NIW, this section remains empty because there is no DOL review.
3. Employer Signs Bottom
If you have an employer sponsor, they sign the employer attestation. If self-petitioning, you sign as both petitioner and beneficiary.
4. Submit with I-140
Include this signed but uncertified Appendix A with your NIW I-140 petition to USCIS. USCIS reviews the job requirements and your qualifications without DOL involvement.
NIW vs Regular EB-2: Process Comparison
| Step | NIW (Waived) | Regular EB-2 |
|---|---|---|
| Prevailing Wage (PWD) | Not required | Required (2-8 months) |
| Recruitment/Ads | Not required | Required (2-3 months) |
| PERM Labor Certification | Not required | Required (6-12 months) |
| Appendix A (ETA 9089) | Empty Section H, signed, submitted with I-140 | DOL-certified after PERM approval |
| I-140 Petition | File directly (4-8 months) | After PERM approval (4-8 months) |
| Total Time to I-140 | 4-8 months | 12-26 months |
NIW Eligibility: The Three-Prong Test
To qualify for NIW, you must meet all three criteria established in Matter of Dhanasar (2016):
Prong 1: Substantial Merit and National Importance
Your proposed endeavor has substantial merit and national importance. This can be demonstrated in fields such as business, entrepreneurship, science, technology, health, education, etc.
Prong 2: Well Positioned to Advance the Endeavor
You are well positioned to advance the proposed endeavor. Demonstrate education, skills, knowledge, record of success, plan for future activities, progress toward achieving endeavor.
Prong 3: Balance of Factors Favors Waiving Job Offer
On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. Show that requiring PERM would be impractical or contrary to national interest.
Common Questions
Do I need a job offer for NIW?
No job offer is required. You can self-petition. However, having a job offer or employer sponsor can strengthen your case by demonstrating concrete plans to continue your work in the U.S.
Can I change employers after NIW approval?
Yes. Since NIW does not require employer sponsorship or PERM tied to a specific employer, you have flexibility to change employers as long as you continue working in your field of national interest.
Why is Appendix A required if labor certification is "waived"?
USCIS still needs to verify that you meet the job requirements and that the position qualifies under EB-2. Appendix A provides this information without requiring DOL review and certification. Think of it as documentation rather than certification.