The National Interest Waiver for EB-2

Generally, application of second preference of employment-based immigrant visa, unlike first preference, requires a specific job offer and a labor certification. However, a foreign person may seek a waiver of the offer of employment by establishing that his admission to permanent residence would be in the “national interest”.

Second preference EB-2 aliens are those are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability.

EB-2 petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750. However, aliens can get this requirement waived through applying for a national interest waiver (NIW). Aliens can do self-petition for NIW without an employer to sponsor them and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker. To do this, an alien mush show how he/she proposes to substantially benefit the national economy, cultural or educational interests, or welfare of the U.S. A national interest waiver is essential for individuals whose careers do not typically involve permanent employment with a single company.

Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation.

How to Argue an National Interest Waiver Case: precedent The New York State Department of Transportation (NYSDOT)

1998, the INS designated the decision in the New York State Department of Transportation (NYSDOT) as the first precedent decision to address the national interest waiver (NIW). Under NYSDOT, a waiver applicant is now required to

  1. Show that he/she seeks employment in an area of substantial intrinsic merit,
  2. Show that the proposed benefit will be national in scope, and
  3. Demonstrate that the national interest would be hurt if labor certification were required or in other words, establish that he/she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. In NYSDOT, the petitioner was an alien employee with a master’s degree in engineering whose area of expertise was bridge design.

The alien’s employment in the field of bridge design and repair easily met the first “substantial merit prong” of the NYSDOT framework, due to the apparent importance of bridges. However, there is no discussion in the decision on how this prong will be applied in the future. The AAO found that the petitioner met the second prong (that the proposed benefit be national in scope), since New York bridges are an important component of the national transportation system. NYSDOT says that occupations that benefit regional or local interests alone are not sufficient. A result of the “national in scope” requirement is that many who once qualified for the waiver of a job offer and labor certification can no longer do so despite offering a clear benefit to the national interest as a whole. For example, primary care physicians serving in underserved areas are hurt by NYSDOT, since the benefits of providing primary care to local areas may not directly impact the nation as a whole.

The third prong of NYSDOT requires aliens to demonstrate that they will serve the national interest by engaging in their field of endeavor “to a substantially greater degree than would an available U.S. worker having the same minimal qualifications,” and calls for justification as to why a labor certification would be inappropriate. A demonstrated history of past accomplishments exceeding those needed in the occupation along with the alien’s significant and not merely participatory role is required. Overall, it must be demonstrated that the aliens’ services in the past have contributed to the field of endeavor in some quantifiable way. This requirement disqualified the petitioner in NYSDOT. However the AAO found that appeals by medical researchers active in investigating the genetic etiology of diseases satisfied the third prong.

What is a Petition Letter for Employment Based Immigration?

A petition letter, which discusses the reference letters and other pieces of evidence, serves to tie the petition together by providing a thorough discussion of the alien’s work and why it meets the criteria for extraordinary ability. Using legal arguments, the petition letter addresses how the alien meets the criteria for the visa. An index of exhibits is included at the end of the petition letters, which the petition letter references for evidence.

A petition letter is generally around 25 -30 pages long double spaced. Its format includes an introduction of the alien’s achievements and qualifications, proof of extraordinary or exceptional ability, proof that the alien seeks to enter the U.S. to continue work in the area of ability, proof that the alien’s entry will substantially benefit the U.S., and a conclusion. Included in the proof of extraordinary/exceptional ability section is how the alien meets each of the necessary criteria. Also, the petition letter relies heavily on direct quotes from the reference letters as evidence, so it is important to have strong reference letters.

Reference Letters for NIW (National Interest Waiver) and EB-1 (Aliens of Extraordinary Ability and Outstanding Professor/Researcher)

Reference letters are important since they serve as crucial evidence for the meeting the necessary criteria. They can be used to demonstrate or confirm the significance of the alien’s work and the recognition of their achievements.

The alien should choose letter writers who are experts in the alien’s field or in a similar field. Unlike typical reference letters, for employment based immigration petitions, it is best to find independent letter writers who do not know the alien personally and have not worked with him/her. This is because USCIS views independent letter writers as having less of a personal stake in having the petition approved. It is also helpful to find letter writers who can demonstrate that the work has had an influence on other researchers in the field.

Petitions should have at least several reference letters, which include a short biography of the letter writer’s credentials, discussion of the alien’s work and why it is significant. A good reference letter should overall demonstrate the alien’s ability. The letter writer should clearly state that the letter is independent if it is. It is important to back up claims with evidence in letters. It is also necessary to emphasize what the alien has already accomplished, as opposed to describing work as promising or perhaps being significant in the future.

Reference letters can be used to demonstrate achievement/influence in an area where the alien’s credentials are not as strong.

Frequently Asked Questions for EB2-NIW (National Interest Waiver)

What are the differences between EB-2 and EB-2 NIW petitions?

For an ordinary EB-2 case, the foreign beneficiary needs an employer sponsor and the petitioner (employer) needs to obtain a labor certification before filing Form I-140. The foreign person therefore is called beneficiary. The petition needs to establish the qualification of the foreign beneficiary (foreign beneficiary with advanced degree or exceptional ability). For an EB-2 NIW case, the foreign national can do self-petition or have his/her employer be the petitioner. The petition not only needs to establish the foreign national’s qualifications under EB-2 but also the qualification of national interest waiver (NYDOT three-prong test). Generally, it is more difficult to obtain immigration benefit under EB-2 NIW than ordinary EB-2. However, if you do not have an employer to do the sponsorship, you can only file NIW.

If I am qualified for NIW case, should I do self-petition or ask my employer to be my sponsor?

Cases seem to show a slight difference between foreign nationals who have self-sponsored their own petitions versus foreign nationals who are sponsored by their companies. Generally speaking, if the foreign national’s employer has a distinguished reputation in the field, it is preferable to have the company or organization act as the petitioner. However, if the foreign national has been qualified for NIW, there should be no difference who files the petition.

What does NIW waive?

The national interest waiver waives the labor certification process and the necessity of having an offer of employment, but it does not waive the basic “entry” requirements for second preference classification. Therefore only after the second preference threshold be satisfied can a national interest waiver be considered.

Who qualifies under EB-2?

This preference benefits foreign persons who have advanced degree or their equivalent in professional fields OR exceptional ability in the sciences, arts, or business.


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