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National Interest Waiver
EB-2 National Interest Waivers
Aliens under the employment-based second preference may seek a waiver of the job offer and labor certification requirements through a national interest waiver.
In a number or recent nonprecedent AAU decisions, the USCIS has said the following criteria may be used to determine national interest, but not all of the criteria need be met:
1. improving the United States economy;
2. improving wages and working conditions of U.S. workers;
3. improving education and training programs for U.S. children and other qualified workers;
4. improving health care;
5. providing more affordable housing for young and/or older poorer U.S. residents;
6. Improving the U.S. environment and making more productive use of natural resources; or
7. involving a request from an interested government agency.
According to the Mississippi Phosphate case, satisfying any one of above factors (or relevant factors which are not specifically referred to on this non-exhaustive list) could be considered in the national interest.
However, since August of 1998, due to a case known as the "New York State Department of Transportation" (NYSDOT) case, approvals in this category have become more difficult to obtain. USCIS is scrutinizing these petitions more carefully and, in many instances, is applying a higher standard similar to the "extraordinary ability" standard. In NYDOT case, the Beneficiary possessed a masters degree in civil engineering and was being petitioned to provide professional engineering services for the rehabilitation, replacement, maintenance and inspection of bridges. The AAO cited three factors that must be considered when evaluating a request for a national interest waiver:
1. It must be shown that the alien seeks employment in an area of substantial intrinsic merit.
2. It must be shown that the proposed benefit will be national in scope.
3. National interest would be adversely affected if a Labor Certification were required for the alien
4. The alien beneficiary must "serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.".
This third part of the test is the most onerous, and the most objectionable. In evaluating the alien's prospective benefit to the United States, USCIS will consider whether "the alien's past record justifies projections of future benefits to the national interest." Simply establishing a certain level of training or education is not sufficient to establish prospective national benefit. Arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish national interest. The mere fact that the alien is engaging in this field or seeking an as-yet undiscovered solution to the issue is not enough. The shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver. This raises the bar of National Interest Waiver to higher standards.
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What service can we provide to you?
Once you retain us, we will provide following service to you:
1. Evaluate your background and qualifications to design petition approach: EB-1A, EB-1B, or EB-2 NIW;
2. Review and edit your draft recommendation letters;
3. Guide you to collect and organized required documents;
4. Draft the petition letter;
5. Submit the completed petition package to USCIS;
6. Guide you prepare supplemental documents if required;
7. Contact with USCIS for inquiry when the petition is pending.
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