National Interest Waiver

For most people applying for second employment-based immigration, or EB2 Visa, they must be sponsored by an employer and an approved labor certification must be obtained first. However, if an alien can prove that the waiver of the job offer to him and the labor certification will be in the “National Interest” to the U.S., he may skip the time and cost-consuming labor certification procedure, and can apply for himself for immigration without the sponsorship of an employer.

National interest waiver applies to aliens of “exceptional ability” in the science, arts or business and advanced-degree professionals. For some people of this caliber, they may also be qualified for First Preference as an alien of extraordinary ability or outstanding professors or researchers. Thus, national interest waiver has been an important feature of the second employment-based immigration.

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To be eligible for a national interest waiver, an alien must either hold an advanced degree or have exceptional ability in the science, arts or business.

A. Advanced Degree

Advanced degree means an academic degree above that of the baccalaureate, which is usually a master’s degree. Alternatively, a baccalaureate degree plus five years of working experience in the specialty will be considered the equivalent of a master’s degree.

B. Exceptional Ability

“Exceptional Ability” requires that the alien has a degree of expertise above that ordinarily encountered in his or her field in order to obtain a national interest waiver. INS requires at least three of the following evidences to establish exceptional ability:

1) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution;

2) Letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

3) A license to practice the profession or certification for a particular profession or occupation;

4) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

5) Evidence of membership in professional associations;

6) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations;

7) The alien must have at least two years of experience in the area in which he or she will benefit the US.

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In the past, national interest was found based on a list of elements which can be adjudicated on a rather objective ground. If the applicant can prove meeting three of the ten factors, the EB2 Visa application can be approved. However, in 1998, the Administrative Appeals Office (AAO) handed down a decision in Matter of New York Department of Transportation (NYDOT) which essentially changed the whole national interest waiver standard and made the application a lot more difficult. Under this precedent decision, the applicant for national interest waiver must prove all the following three factors:

1) The alien must seek employment in an “Area of Substantial Intrinsic Merit”;

2) The interest the alien created must be “national in scope”;

3) The applicant must prove that the national interest would be adversely affected if a labor certification were required for the alien.

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Under the NYDOT decision, the test for the national interest waiver application seems reduced, but the standard is actually mush higher than before. Of the three factors, most of the applicants do not have problem establishing the first two elements. However, it becomes difficult to overcome the third element.

Under the third element, the AAO reasoned that the labor certification process exists for the purpose of protecting U.S. workers from foreign competition. If any U.S. worker meets the minimal qualification for the applied job and is available, the employer will not receive the labor certification. Therefore, the reasoning continues, the alien seeking exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification.

The consequence of this reasoning together with the lack of a clear standard is that the INS can subjectively reject the NIW application on the ground that the application “does not outweigh the labor certification process”.

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Although the scrutiny of the national interest waiver has been tightened up substantially, it does not mean that the door has been completely shut down. It only means that the applicant and the attorney must work together to prepare the application more persuasively. To accomplish that, the document to be prepared would be wide-range, and the applicant must obtain strong evaluation or reference of their work from expert in his field, preferably from a government agency. It may be also to the alien’s interest to explore other options for immigration application, e.g. if the applicant is qualified, to apply for first-preference, or simultaneously apply for labor certification.

The application for a national interest waiver is filed with Form I-140. The applicant must file all the documents to prove the above-referenced criteria. Once the national interest waiver is approved, the applicant can immediately file Form I-485 to INS for permanent residency application. The applicant can also apply for working permit and advance parole. As such, the applicant will not have to maintain his previous status, like H-1 or O-1, once he is in this stage of application. He will also be free for traveling if he receives the advance parole from INS.

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To assist you understand your chance of getting a national interest, our firm will evaluate your resume for free. The evaluation is based on our experience in handling EB-1 and EB-2 cases. We will also discuss with you the merits and the weakness of your case to minimize EB2 Visa processing time. It certainly would be to your greatest advantage and convenience to let our professionals and attorneys evaluate your credentials first. Please visit the “FREE EVALUATION” section of this page for detail.
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