Why National Interest Waivers Are Increasingly Common in the Green Card Process

In light of ongoing uncertainties in the permanent labor certification (PERM) green card process, many companies are seeking to diversify green card strategies for their employees. One increasingly common option is the national interest wavier (NIW) green card process.

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In light of ongoing uncertainties in the permanent labor certification (PERM) green card process, many companies are seeking to diversify green card strategies for their employees. One increasingly common option is the national interest wavier (NIW) green card process.

Historically, PERM was the standard pathway for foreign national workers to secure employment-based permanent residency in the United States. It can be a particularly time-consuming process (one to two years) due to labor market tests and prolonged Department of Labor wait times. Current economic conditions and an increase in failed labor market tests have made PERM particularly challenging.

Without a successful labor market test, PERM cases are unable to move forward. Often, PERM applications will come to a halt after months of work, which can significantly impact a foreign national employee’s ability to work and live in the United States lawfully and a company’s ability to retain and attract talent.

The national interest waiver, like PERM, is a path to a green card and offers individuals who qualify a second preference employment-based category (EB-2). The key difference, however, is that national interest waivers do not need to go through a labor market test if certain criteria can be met.

In order to be eligible, foreign national workers must either:

• Hold an advanced degree (master’s degree or higher) or a bachelor’s degree plus five years of progressive experience in a relevant field; or
• Attain exceptional ability in the sciences, arts, or business. This means a level of expertise significantly above that ordinarily encountered.

Additionally, NIWs also require that:

• The beneficiary’s proposed endeavor (or employment) has both substantial merit and national importance;
• The beneficiary is well-positioned to advance that endeavor; and
• On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus a labor certification.

As NIWs do not require a labor market test, applications are not affected by economic trends and layoffs like PERM applications. In addition, processing times are shorter because NIWs do not require the Department of Labor’s involvement.

The Biden administration is fostering a favorable environment for NIW green card cases, as demonstrated by various updates and policies, especially for individuals working within critical and emerging technologies.

These changes include U.S. Citizenship and Immigration Services updating its policy manual with favorable guidance, providing more deference for applicants with advanced STEM degrees and extending premium processing service to NIW petitions.

Last year’s Executive Order on Artificial Intelligence, for example, asks government agencies “to expand the ability of highly skilled immigrants and nonimmigrants with expertise in critical areas to study, stay, and work in the United States.” 

Some people are intimidated by terms like “substantial merit” and “national importance”; however, the truth is that companies from a wide range of industries are incorporating NIWs into their green strategy. While not everyone is a strong candidate, many believe that they do not qualify when, in fact, they may have a compelling case. 

Whether the administration’s current openness to NIW petitions continues depends on several factors, including the 2024 presidential election. For this reason, many companies are being more aggressive in NIW filings so that current policy standards apply—especially because there’s no telling when the current difficulties with PERM may subside. 

Nazish Ali and Storm Estep are senior associates in BAL’s Dallas office.