National Interest Waiver

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Employment Based Immigration – Eb-2 (The National Interest Waiver)


Definition

The National Interest Waiver is an exception to the labor certification requirement usually required of those seeking to immigrate under the Eb-2 category in addition to the requirement that the foreign national be a member of the profession who holds an advance degree or be a person of exceptional ability. Under the power created by the Immigration and Nationality Act (INA), the Attorney General has the power to waive the labor certification requirement under Eb-2 when it is deemed to be in the national interest. However, the term “national interest” is not specifically defined by either in the INA or by the USCIS.

 

Eligibility Criteria

 

1.      National Interest Waiver is only available for those individuals who qualify under the Eb-2
category of employment based immigration. 
2.      The Eb-2 category applies to foreign nationals that have either an advanced degree or
demonstrate exceptional ability in their area of practice.

The Three-Prong Test for Granting a National Interest Waiver
1.      The foreign national must seek employment in the United States that is in an area of
considerable intrinsic worth. 
2.      The proposed benefit from the foreign national’s employment must be national in scope.
3.      The national interests of the United States would not be as well served if the position was
given to a U.S. worker with the same minimum qualifications. 

In order to demonstrate that the foreign national would serve the national interest better than a worker in the U.S with the same minimum qualifications, the foreign national must evidence that he/she has a demonstrated record of specific prior achievements.

Proof of Specific Prior Achievements

 

In case law, the Administrative Appeal Unit has outlined some things that do not suffice in proving specific prior achievements. This list includes:

1.      Assertion of a labor shortage;
2.      The mere possession of useful skills or a unique background or experience;
3.      Simple exposure to advanced technology;
4.      Special or unusual knowledge or training.

In order to demonstrate that the U.S. national interest would not be negatively affected if labor certification was granted to the foreign national, the individual must prove that his or her contributions to the field that have greatly exceeded the achievements and significant contributions made by others in the same field. This can be accomplished by providing evidence of past achievements that validate projections of proposed future benefits from this individual. Therefore, the candidate must have adistinguished ability that will serve the national interest to a greater degree than the majority of the candidate’s colleagues, and he or she must have a past history of achievement that can be demonstrated to have had an impact on the field as a whole. Thus, because the USCIS is looking for future benefits that the individual will have on the national interest, the foreign national must be able to demonstrate these future benefits by providing an outstanding record of specific past achievements.

 


If, based on this information, you are still uncertain whether your credentials qualify you for theNational Interest Waiver or are unsure of your likelihood in being granted this type of visa, please feel free to email our office with a copy of your resume or curriculum vitae to us@usemin.com. The attorneys at our office will then review your qualifications and reply to you with a written evaluation within two working days.  

This evaluation is free and does not create any obligation on your behalf to continue utilizing our services following the receipt of this evaluation.

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