Self-Petitioning: No Employer or Job Offer Needed

Employment-based second preference ordinarily requires that your services "be sought by an employer in the United States" — a job offer, backed by a Department of Labor labor certification. The national interest waiver is Congress's built-in exception: USCIS may waive that requirement when it deems the waiver to be in the national interest. 8 U.S.C. section 1153(b)(2)(B)(i).

USCIS guidance draws the consequence without hedging. A petition filed with a request for the waiver needs no job offer behind it, so the person files as a self-petitioner — and waiving the job offer waives the permanent labor certification requirement along with it. No employer signs, no employer pays, no employer recruits U.S. workers to test the labor market. The petitioner on the Form I-140 is you.

Matter of Dhanasar — the decision that supplies the current three-part test — was framed with self-supporting professionals in view. Its third-prong discussion acknowledges that securing a job offer from a U.S. employer may be impractical for an entrepreneur or self-employed inventor advancing an endeavor on their own.

Four situations account for most of the self-petitioners we hear from.

Employed, but filing independently. You can hold a job — including one your employer sponsors a work visa for — and still self-petition for an NIW. The Policy Manual is explicit that a person is not precluded from seeking a national interest waiver because the person's employer has applied or could apply to the Department of Labor for a labor certification. USCIS Policy Manual, 6 USCIS-PM F.5(D)(3). The filing requires nothing from your employer: no signature, no financial documents, no participation.

Between roles. Because no job offer is required, a gap in employment does not disqualify the petition. The case is analyzed on your proposed endeavor and your record — which puts extra weight on the endeavor statement and the plan for future activities, since there is no current position to anchor the narrative.

Self-employed, founding, or consulting. This is the situation Dhanasar addressed by name — the entrepreneur or self-employed inventor for whom a job offer from a U.S. employer may be impractical. The Policy Manual devotes an entire subsection to the evidence entrepreneurs can bring.

Filing from abroad. Self-petitioning is what makes the NIW a realistic route for people not yet in the United States, since there is no U.S. employer to sponsor from afar. The requirements on this page are the same; the back end of the process differs, and our filing-from-abroad page walks through that path.

Does this person qualify for EB-2 in the first place? Threshold classification — advanced degree or exceptional ability — is evaluated before the waiver, and a self-petition that treats it as a formality can be denied without the waiver analysis ever being reached.

What will this person actually do, and for whom? With no employer or job description in the record, the endeavor statement carries the full weight of defining the work. Officers look for a petition that describes specific projects and goals in a straightforward manner instead of restating an occupation.

Is the plan substantiated? Unsubstantiated claims do not meet the petitioner's burden of proof — the record needs evidence of a real plan, real progress, and real interest from others. Projections standing alone will not carry it.

We start with the endeavor, because for a self-petitioner it does the defining work an employer's paperwork would otherwise do.

A missing employer leaves one question open: who says this work matters, and who says you can do it? Independent sources, outside interest, and corroborated progress are what answer it.

Your employer stays out of it unless you decide otherwise. The filing needs nothing from them, and we plan the case so it stays that way.

If your situation reads stronger under a different route — or if the endeavor needs development before a self-petition is worth filing — you will hear that from us first.