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National Interest Waivers / EB-2 Green Card Category

Our immigration law firm fights for "National Interest Waivers" for many of our clients. The Immigration and Nationality Act ("INA") created a category of immigrants who wish to immigrate to the United States based on their holding advanced degrees or their equivalent, and individuals of exceptional ability in the arts, sciences, or business. This category is known as the second employment-based, or "EB-2", immigrant category.
In order to immigrate to the United States, an EB-2 immigrant typically must have a job offer and an approved Labor Certification application. However, foreign nationals who fall within this category may have the job offer and labor certification requirements waived by USCIS if the foreign national's presence in the United States is considered to be in the "national interest." An immigrant in this situation is seeking a "national interest waiver" to the labor certification requirement.

Although an foreign national may petition for himself when seeking a national interest waiver, the USCIS is more likely to grant such a waiver when the foreign national's services are being sought by an employer within the United States.

To learn whether you may be eligible for a national interest waiver please contact our office for a free consultation. Please have a current CV available for our attorney to review with you, including any awards, publications, citations, and presentations.

Who qualifies for a National Interest Waiver?

In order to qualify for a national interest waiver, a foreign national must show a number of things. First, the foreign national must be an "advanced degreed professional."  An advanced degree is considered to be a U.S. master's degree or an equivalent foreign degree or higher (i.e. PhD, MD, JD etc.). If a foreign national does not possess an advanced degree, he may still be eligible for the EB-2 category if he is an "alien of exceptional ability" in the arts, science or business.

In addition to being a member of one of the above two immigrant categories, the foreign national must prove that their contributions significantly benefit the US national interest. The foreign national must contribute on a national level, and not just to a specific community. The following are examples of grounds we have successfully used as the basis for the granting of a national interest waiver:

 -Improving the U.S. economy 
 -Improving the wages and working conditions of U.S. workers 
 -Improving education and training programs for U.S. children and under-qualified workers 
 -Improving health care in the U.S. 
 -Providing more affordable housing for young and/or older, poorer U.S. residents 
 -Improving the environment of the United States and making more productive use of natural resources 
 -A request from an interested U.S. Government Agency

Recent changes in the law:

In a precedent decision, upon de novo review, the AAO revised the analytical framework for assessing eligibility for national interest waivers under section 203(b)(2)(B)(i) of the INA, and sustained the appeal and approved the petition. Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016)

This precedent decision means that USCIS may grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

Prior to this new decision, In Re New York State Department of Transportation ("NYDOT"), clarified the evidence needed to show that a foreign national qualifies for a national interest waiver. Under the old standards, a foreign national seeking a national interest waiver must demonstrate that they:

-Wish to work in an area of "substantial intrinsic merit". Work will most likely be considered in an area of "substantial intrinsic merit" if it meets one of the waiver grounds set forth above.

-Will provide a benefit that "will be national in scope". An activity may be limited to a particular geographic area, yet still be "national in scope". However, it cannot adversely impact another region. For example, in NYDOT, an engineer's work to repair highway bridges in New York was determined to be "national in scope" because such bridges are connected to the national transportation system, and would not adversely impact any other part of the country.

-Will "serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications". This is the most difficult criteria to meet since it requires a comparison of the benefits received from the foreign national's work versus the harms to the U.S. workforce, and presumes that a U.S. worker will lose a job opportunity if the foreign national is permitted to immigrate.

While many national interest waivers are  granted under the current standards, arguing a case for a national interest waiver today, all but requires the use of an experienced immigration attorney.

To learn whether you may be eligible for a national interest waiver please contact our office for a free consultation. Please have your current CV available for our attorney to review with you, including any awards, publications, citations, and presentations.

"Immigration Law is a mystery and a master of obfuscation, and the lawyers who can figure it out are worth their weight in gold."  - Karen Kraushaar, INS Spokesperson, Washington Post, April 2001

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