National Interest Waivers

As a general rule EB-2 petitions require an offer of employment by an employer who is required to file a petition on an individual’s behalf. An individual, however, may seek an exemption from the job offer requirement and file his/her case as a “self-petitioner” if the USCIS can determine from the materials submitted that an exemption would be in the “national interest”. In that case a labor certification and job offer are not required.

National Interest Waiver cases have been filed in the past with great success, but are becoming increasingly difficult because of more rigorous USCIS standards. Several factors have been used in determining whether a case could be granted in the national interest. Those factors include: 1) Improvement of the economy; 2) Improving wages and working conditions of U.S. workers; 3) Improving education and training programs for U.S. children and underqualified workers; 4) Improving health care; 5) Providing more affordable housing; 6) Improving the U.S. environment and increasing productivity of U.S. resources; 7) Requests from an interested U.S. governmental agency.

In August of 1998, the INS’ (now USCIS) Administrative Appeals Office (AAO) issued a “precedent decision” which imposes certain additional thresholds to be met in national interest waiver cases. That decision, entitled – IN RE: New York State Department of Transportation (NYSDOT), is enclosed and should be closely reviewed in determining whether to file under the National Interest category. Under the NYSDOT test, a number of important factors must be demonstrated in a national interest waiver case, including that:

1. An individual seeks employment in an area of “substantial intrinsic merit”;
2. The individual’s work must have a benefit which will be “national in scope”;
3. The individual must serve the national interest to a “substantially greater degree” than would an available U.S. worker having the same minimum requirements. A determination is made whether the national interest would be “adversely affected if a labor certification would be required for the alien. In evaluating an individual’s “prospective” benefit, the INS (now USCIS) has stated that it will consider a person’s “past record” to see if it justifies projections of future benefits to the national interest.

Since national interest waiver evidentiary standards are “evolving”, it is of extreme importance that individuals consult an attorney to determine whether they qualify for this once useful EB-2 category. As with any other employment-based immigrant visa category, it is of the utmost importance that an individual gather all possible evidence and documentation demonstrating achievements and original work in his/her field, so that a proper and productive analysis can be made by the attorney preparing the case. Specific evidence of past achievements and objective letters of support from eminent experts in their field of specialty will need to be prepared and are quite important (as are citations of their original scientific or academic work). If prepared properly, the national interest waiver is still a very viable option for those individuals who are able to demonstrate suitable qualifications, substantial past achievements, and future contributions in their field which are in an area of intrinsic merit and are in the U.S. national interest.

 

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