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H1b and NIW Application

May 2, 2023

The National Interest Waiver (NIW) is a type of employment-based immigration category that allows foreign nationals to obtain a green card (permanent residency) without having to go through the labor certification process.
The H-1B visa is a non-immigrant visa that allows foreign workers to work in the United States temporarily. One of the requirements of the H-1B visa is that the applicant must demonstrate that they have non-immigrant intent, meaning that they intend to return to their home country when their visa expires.
However, the doctrine of “dual intent” allows H-1B visa holders to have both non-immigrant intent and immigrant intent at the same time. This means that an H-1B visa holder can apply for a green card (permanent residency) while still maintaining their H-1B status, as long as they intend to return to their home country if their green card application is denied.
Filing for a National Interest Waiver (NIW) can have legal consequences on an H-1B visa holder’s dual intent. By filing for an NIW, the H-1B visa holder is demonstrating their intent to immigrate to the United States permanently, which may conflict with the non-immigrant intent required for the H-1B visa.
However, it is important to note that an NIW application alone does not automatically invalidate an H-1B visa holder’s non-immigrant intent. As long as the H-1B visa holder continues to maintain their H-1B status by meeting the requirements of the visa (including maintaining ties to their home country), they can still be eligible for an H-1B extension or renewal even if they have applied for an NIW.
It is recommended that H-1B visa holders consult with an immigration attorney to fully understand the potential consequences of filing for an NIW and to develop a comprehensive immigration strategy that takes into account their individual circumstances and goals.