Who is Eligible?
Within the Second Employment Based Preference Category (EB-2) is a sub category called the "National Interest Waiver." The difference between the main category and its sub-category is the JOB OFFER and LABOR CERTIFICATION requirement present in the main EB-2. These requirements may be WAIVED in the NATIONAL INTEREST if the petitioner can show that his skills will substantially benefit the U.S.
The petitioning process is largely the same as the EB-2 except for two key differences.
- Labor certification may be waived; and
- No particular job offer will be required, although the petitioner must show a field in which he/she intends to work;
- To apply for the exemption, the petitioner must submit the I-140, along with a Form ETA 750B, Statement of Qualifications of Alien, in duplicate; and
- Evidence to support the claim that such exemption would be in the national interest. Such evidence includes:
- letters from experts familiar with Petitioners work
- educational credentials
- published works
- awards or other recognition for achievements in the field
- memberships in exclusive professional associations.
- NATIONAL INTEREST - There is no set definition of the term National Interest. The INS instead applies the term to each case on an individual case-by-case basis. The main case, Matter of [name not provided], EAC 92-091-50126 (AAU July 21, 1992), known as the "Mississippi Phosphate" case, that has provided guidance on the issue was decided in 1992. In that case the court set out the following factors as relevant to granting a National Interest Waiver:
- improving the United States economy;
- improving wages and working conditions of U.S. workers;
- improving education and training programs for U.S. children and other qualified workers;
- improving health care;
- providing more affordable housing for young and/or older, poorer U.S. residents;
- improving the U.S. environment and making more productive use of natural resources; or
- involving a request from an interested government agency.
- PRIOR EXPERIENCE AND TRAINING IN THE FIELD - The alien must have two years of full-time experience in the field;
- NATIONAL NEED FOR SERVICE - The request for waiver may not be based purely on a local labor shortage;
- "PLAY A SIGNIFICANT ROLE" - The Petitioner will work on an undertaking which will "substantially benefit prospectively the United States;" and the Petitioner will "play a significant role" in the undertaking.
- BETTER THAN U.S. WORKER - The Petitioner must show that he/she will "serve the national interest to a substantially greater degree based on the INS appraisal of his or her record of achievement than would an available U.S. worker having the same minimum qualifications."
C. ACCEPTABLE EVIDENCE:
- INTRISIC VALUE OF SERVICES - Petitioner must show that the Petitioner seeks employment in an area of substantial intrinsic merit to the U.S. The Petitioner must show that his/her work will improve an area such as the economy, education, heath care, housing, or the environment of the United States.
- NATIONAL IN SCOPE - It must be shown that the proposed benefit will be national in scope.
- NATIONAL INTEREST - The petitioner must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.
- PAST ACCOMPLISHMENTS - The Petitioner must document a record of past accomplishments from which it can be concluded that he or she will serve the national interest to a greater extent than other persons with the same level of education, training and/or experience.
Depending on whether the employer follows the standard labor certification procedure or pursues reduction in recruitment expedited procedures, the labor certification alone can take more than one year. Following the labor certification, the prospective immigrant must still file the I-140 and I-485 in the proper order which can also take several months.