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Immigration Law Blog

Friday, March 15, 2019

What is the National Interest Waiver?

The national interest waiver is an individual petition under the US’s second preference program for the employment-based immigrant visa (the “EB-2”). The EB-2 visa allows individuals to work in the U.S. based on their specific employment-related skills. To qualify for the EB-2 visa, individuals must have either an advanced degree or have an exceptional ability. To qualify for advanced degree eligibility, the applicant must possess a baccalaureate degree plus five years of progressive work experience in that field. Alternatively, an individual may show exceptional ability in the sciences, arts, or business. “Exceptional ability” is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

To meet the criteria for exceptional ability, at least three of the following must be met:

  1. Official records indicating degrees or awards from recognized institutions relating to the claimed area of exceptional ability.
  2. Letters documenting 10 years of full-time employment experience in the claimed area.
  3. A professional license for the occupation.
  4. Compensation indicating exceptional abilities, such as pay well beyond median amounts or strong performance bonuses.
  5. Membership in professional associations.
  6. Recognition of achievements and accomplishments in the asserted area of exceptional ability given by peers, government entities, and professional organizations.
  7. Other comparable evidence of eligibility showcasing exceptional ability may be considered.

If eligible to apply for the EB-2 visa, applicants must have an offer of employment from a U.S. employer who is willing to petition the government for a labor certificate for that individual. The labor certificate is not guaranteed and can be very costly for employers. As a result, many employers are reluctant to petition for the labor certificate which drastically increases the difficulty in receiving an EB-2 visa.

Alternatively, certain individuals may petition for a national interest waiver which eliminates the requirement for a labor certificate. National interest waivers are only granted to individuals with exceptional ability and whose employment in the U.S.  would greatly benefit the nation. Thus, individuals may use the national interest waiver exception to eliminate the requirement that potential employer petition for the labor certificate, reducing the risk for the employer and increasing the chances of the individual to be hired and granted the EB-2 visa.

 


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