EB2

NATIONAL INTEREST WAIVERS FOR ADVANCED DEGREE PROFESSIONALS


In order to apply for an exemption (waiver) of the job offer requirement as an advanced degree professional, an applicant must submit clear and convincing evidence to support the claim that such an exemption would be in the national interest. The U.S. Citizenship and Immigration Services (USCIS) has developed what it calls a "national interest test" which outlines seven (7) factors that could be considered in determining whether a waiver of the job offer is in the national interest. While initially limiting its decision to applicants of exceptional ability in business, the test has been expanded to include applicants in many other fields. The seven (7) factors, any one (1) of which needs to be satisfied, are:

· Improving the United States economy;

· Improving wages and working conditions of United States workers;

· Improving education and training programs for United States children and under-qualified workers;

· Improving health care;

· Providing more affordable housing for younger and/or, poorer United States residents;

· Improving the environment of the United States and making more productive use of natural resources;

· Involving a request from an interested United States government agency.

In August of 1998, the USCIS published its first precedent decision, Matter of New York State Department of Transportation, Int. Dec. 3363 (Acting Associate Commissioner, Programs, August 20, 1998) ("NYSDOT"), discussing the standards governing national interest waivers. The Commissioner established three (3) factors for determining whether a particular endeavor constitutes employment "in the national interest" for the purpose of adjudicating employment based second category immigrant visa petitions. The factors to be considered when evaluating a request for a national interest waiver are:

· Whether the applicant seeks employment in an area of substantial intrinsic merit;

· Whether the proposed benefit of the applicants contribution will be national in scope; and

· Whether the national interest would be adversely affected if a labor certification were required for the applicant.

A national interest petition must also be accompanied by evidence of an established record of prior success in the applicants field of expertise. Such evidence may include:

· Documentation of receipt of nationally or internationally recognized prizes or awards for excellence in the applicants field of endeavor;

· Documentation of membership in associations in the applicants field, which require outstanding achievements of its members;

· Published material in professional or major trade publications or major media about the applicant, relating to his/her work in the field of expertise;

· Evidence of participation on a panel, or individually, as a judge of the work of others in the same or in an allied field or specialization;

· Evidence of original scientific, scholarly or business-related contributions of major significance in the applicants field;

· Evidence of authorship of scholarly articles in the applicants field, in professional journals, or other major media;

· Evidence of the display of work in the applicants field at artistic exhibitions or showcases;

· Evidence that the applicant performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

· Evidence that the applicant either commanded a high salary or will command a high salary or other remuneration for services in relation to others in the field of expertise;

· Evidence of commercial successes in the performing arts, as shown by box office receipts or records, cassettes, compact discs, or video sales.

If the above standards do not readily apply to the applicants field of expertise, he/she may submit comparable evidence in order to establish eligibility. In addition, the petition must be accompanied by clear evidence that the applicant is coming to the United States (or will remain in the United States) to work in his/her area of expertise.

A critical advantage to qualifying for permanent residency under this category is that neither a job offer nor a labor certification is required. Form I-140, Petition for Alien Worker, is filed as a self-petition at the USCIS center that has jurisdiction over the place where the applicant intends to work. Upon approval, he/she will be eligible to become a permanent resident.