The Employment Based Second Preference Immigrant Visa Category (EB-2) Advanced Degree Holder and Person of Exceptional Ability with National Interest Waivers.

Previously we wrote about the qualifications for an Employment Based Second Preference (EB-2) Immigrant Visa which is for persons who have an advanced degree or persons with exceptional ability in the science, arts or business.  Here we will introduce the concept of the National Interest Waiver that may be available for such applicants.

Under normal circumstances, an applicant for the EB-2 category must have an employer interested in hiring him or her and must go through a test of the U.S. job market to determine if there are any U.S. citizens or lawful permanent residents who are qualified, able and willing to take the position. If not, then the employer can obtain a “Labor Certification” indicating there are no such U.S. workers and will be eligible to file a petition with the United States Citizenship and Immigration Services (“USCIS”) to sponsor the applicant to come and work for the employer. Conversely, if there is a U.S. worker who wants the position, then the employer will not be issued a Labor Certification and will not be able to petition for the applicant.

However, if the work the applicant will be doing is in the “national interest” of the U.S, the applicant may qualify for a National Interest Waiver and the employer can file the petition without a Labor Certification.  Moreover, an applicant that can obtain approval of a National Interest Waiver may self-petition for him or herself.

The “national interest” test is not defined by law, but instead, we look at case law to help determinate what criteria the USCIS will consider is in the national interest and whether that applicant can qualify for the waiver.

On December 27, 2016 the case Matter of Dhanasar established a new analytical framework for determining whether a foreign national is eligible for a waiver of the Labor Certification requirement, and thus, a National Interest Waiver. The Matter of Dhanasar criteria are:

  1. The foreign national’s proposed endeavor has both substantial merit and national importance. Substantial merit can be in one of many areas such as business, entrepreneurialism, science, technology, culture, health, or education. While the potential of the endeavor to create economic impact/benefit is favorable, it is not required.  National Importance is the potential prospective impact (e.g. improved manufacturing processes; medical advances, education, etc.) of the endeavor.
  2. The foreign national is well-positioned to advance the proposed endeavor. The USCIS will look to his or her education, skills, knowledge and record of success in related or similar efforts, a model or plan for future activities, progress toward achieving the endeavor, and the interest of potential customers, users, investors or other relevant entities or individuals.
  3. It will be beneficial to the U.S. to waive the job offer and Labor Certification requirements for the applicant. The USCIS will consider among other factors whether the U.S. would benefit from the foreign national’s contributions even if qualified U.S. workers are otherwise available, and whether the national interest of the foreign national’s contributions are sufficiently urgent to warrant foregoing the Labor Certification process. As part of this test, the applicant must also show that a favorable exercise of discretion is warranted.

Under this three-prong test, to be granted a National Interest Waiver, an applicant – either the foreign national self-petitioning or an employer – must demonstrate all the criteria are met under a preponderance of evidence (“more likely than not”) standard.

For more information on National Interest Waiver, contact and schedule a consultation session with a U.S. immigration attorney in Ho Chi Minh City, Manila and Taipei.