Is the National Interest Waiver right for you?
Kyle Huffman • March 6, 2021
How to tell if you are eligible to apply for a National Interest Waiver (NIW)
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The National Interest Waiver (NIW) is an employment-based immigrant visa category that can lead to a green card. One of the key advantages of the NIW is that it allows self-petitioning, so there is no need to find an employer in the United States to sponsor a petition. In fact, “National Interest Waiver” derives from the act of the United States “waiving” the job offer and United States Department of Labor certification requirements. However, the NIW falls under the EB-2 green card category, meaning it is restricted to those individuals who have advanced degrees, or those who, in the absence of an advanced degree, can show that they have exceptional ability in their field of expertise. However, notably, the NIW has become much more accessible since the 2016 court case, Matter of Dhanasar.
Interested in whether you qualify for a NIW?
Here is how to tell if the NIW is the right visa category for you:
Are you an “Advanced Degree Professional”?
The basic definition for an advanced degree professional in the EB-2 category is someone who holds a degree beyond that of a baccalaureate level. Master’s degrees, Ph.D.’s, M.D.’s and J.D.’s are all common examples of advanced degrees that will qualify a person as an advanced degree professional.
Don’t hold such a degree? Don’t worry!
Even if you haven’t completed one of these degree programs, it is still possible to qualify as an advanced degree professional
if you meet certain conditions. A Bachelor of Science or Bachelor of Arts degree can also serve to help qualify you as an advanced degree professional.
United States Citizenship and Immigration Services has provided an alternative definition of advanced degree professional
as someone with a baccalaureate or foreign equivalent degree plus five years of post-baccalaureate, progressive work experience in the field. This means as long as you have completed a BS or BA program, and you have worked in your field full-time for five years since earning your degree, you can still be considered an advanced degree professional!
What if you have not completed a 4-year university degree program?
You may still be eligible for a NIW even without earning a university degree. In the absence of a university degree, another way to be eligible for a NIW is by proving you are exceptionally talented in your profession. There are several ways to show that you have exceptional ability, including letters of recommendation from recognized experts in your field, letters from your past employers (that prove you have been working in your field full time for at least 10 years), memberships in professional associations, evidence that you earn a high salary compared to others in your same occupation, licenses or certificates for practicing in your occupation, among others.
If you have any questions about whether you might be eligible to apply for a NIW, please schedule a consultation with one of our experienced attorneys.
We look forward to working with you.
This blog is not intended to be legal advice and nothing here should be construed as establishing an attorney client relationship. Please schedule a consultation with an immigration attorney before acting on any information read here.
Receiving a two-year green card through marriage is an important step, but it leaves another process ahead: removing the conditions on permanent residence. For couples preparing a joint Form I-751 petition, understanding the filing window and organizing evidence early can make the preparation more manageable. The starting point is your own record. Locate the green card, the notice granting residence, and copies of the earlier immigration filing. Check the date conditional residence began and the card’s expiration date. Do not calculate the next deadline solely from your wedding anniversary or the date an attorney first submitted your case. Understand the joint filing window Under 8 CFR 216.4 , a joint I-751 petition generally must be filed during the 90-day period immediately before the second anniversary of obtaining conditional permanent residence. This is a window before that anniversary, not an additional 90 days after the card expires. Preparing early and filing early are different things. You can begin gathering records well before the window opens, while coordinating the correct submission date with your attorney. A joint petition also requires the appropriate signatures, fee, and supporting documentation. Confirm the current form instructions, accepted filing method, and applicable fee when the case is ready to submit. Build a record of the marriage over time The regulation identifies several types of evidence that may help show the marriage was not entered into to evade immigration law: jointly owned property, a lease for a shared home, combined financial resources, children’s birth certificates, and statements from people with personal knowledge of the relationship. These examples do not mean every couple must have a mortgage, joint accounts, or children. The evidence should accurately reflect your circumstances. A clear explanation of how you manage your household can be more useful than forcing your relationship into a checklist that does not fit. As a practical preparation step, organize records by date and type. Review whether they help explain the course of the marriage, rather than collecting only documents created shortly before filing. Flag separate addresses, name changes, or gaps in the records for your attorney. Never alter a document to make the history appear simpler. Tell your attorney if circumstances change This article addresses joint filing. Divorce, the death of a spouse, abuse, or other significant changes may require a different filing basis or an individualized assessment. Separate waiver provisions exist, with their own requirements. A spouse’s unwillingness to sign does not, by itself, establish eligibility for every waiver. Do not assume that the joint 90-day window answers every question about a non-joint case. If the relationship changes while preparing the petition or while it is pending, inform counsel promptly. You should not need to invent a continuing relationship to seek advice about the options that may actually apply. Keep tracking the case after submission The regulation provides that conditional resident status is automatically extended, when necessary, upon receipt of a properly filed I-751 until adjudication. Proof of that status is a separate practical matter: keep the receipt notice and have counsel review its wording before relying on it for travel or employment documentation. This article does not promise a particular receipt-extension period or processing time. A missed deadline calls for prompt legal attention. The regulation allows some late joint filings where USCIS accepts a written showing of good cause, but acceptance is not automatic. Do not assume a late petition cures the problem without further review. Santos Lloyd Law Firm, P.C. can help you assess the filing window, organize relevant evidence, and identify changes that may affect your I-751 strategy. Contact the firm early enough to review the facts before the deadline approaches.
October begins a new federal fiscal year, but that does not mean every green card applicant moves to the front of the line. The Department of State’s October 2026 Visa Bulletin sets out the visa availability that applicants in family-sponsored and employment-based preference categories need to review this month.
Santos Lloyd Law Firm takes great pride in announcing that Partner Flavia Santos Lloyd has been invited to join the Fellows of the American Bar Foundation. As a highly selective global network, the organization recognizes legal professionals across both the public and private sectors who embody the absolute highest standards of the practice. Admission to this distinguished group highlights Flavia’s outstanding legal career, professional integrity, and deep impact on the legal community. Our team celebrates Flavia on this well-deserved recognition!
