Immigrant Ban Exempts National Interest Waivers

Putting the regulation and the EO together clearly demonstrates that the immigrant ban does not apply to the EB-2 visa if it’s paired with a National Interest Waiver.

On April 22, 2020, President Trump signed an Executive Order (“EO”) banning immigrants from entering the US on a visa issued after the effective date of the executive order (April 23, 2020, 11:59 PM EDT). This has become known as the immigrant ban. You can read an analysis of the EO here. On the face of the order, the EO exempted non-immigrant visas, immigrant visas for health care workers, and legal permanent residents and spouses of US citizens. Also, though not as clear from the language of the order, immigrants coming into the US on an EB-2 visa with a National Interest Waiver are also exempted. Because an immigrant must prove that their field of endeavor in the US is of national interest to the US, an immigrant’s entrance into the US is of national interest.

The Law

A National Interest Waiver is controlled by 8 C.F.R. ยง 204.5(K)(4)(ii), which reads: “The director may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if exemption would be in the national interest.” Here, the director is the Secretary of Homeland Security.

In the EO, under the section that states what the EO does not apply to, it states: “any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.”

The EO exempts an NIW

Putting the regulation and the EO together clearly demonstrates that the immigrant ban does not apply to the EB-2 visa if it’s paired with a National Interest Waiver. If the Secretary of Homeland Security deems your field of endeavor to be in the national interest such that a job offer is not required and waived, then the EO does not apply to your entrance into the US. If your visa is issued after the effective date of the EO, you would still be able to enter the US during the effective duration of the EO.

Contact us

We have experience with the National Interest Waiver in many different fields, including engineering (quantum computing, Bluetooth, software, construction, civil, etc), physicians (researchers, business owners), professionals (business owners, accountants, etc), actors, artists, musicians, and many others.

Contact us for a free consultation and to let us help you with your EB-2 visa with a National Interest Waiver.