JERRY C. CHANG LAW OFFICE, P. C.
6057A Arlington Blvd. (Rt.50), Falls Church, VA 22044
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National Interest Waiver

  • EB-2 National Interest Waivers
  • Data Sheet

    EB-2 National Interest Waivers

    Professionals with advanced degrees, and people of exceptional ability may seek waivers of the job offer requirement if their immigration could be deemed in the "national interest." INA § 203(b)(2)(A) and (B), 8 USC § 1153(b)(2) and (B).

    Waiver of the job offer means the applicant is exempt from obtaining a labor certification, and does not need am employer in the United States to file a petition.

    In a number or recent nonprecedent AAU decisions, the INS has said the following criteria may be used to determine national interest, but not all of the criteria need be met:

    1. Improving the U.S. economy;
    2. Improving wages and working conditions of U.S. workers;
    3. Improving education and training programs for U.S. children and underqualified workers;
    4. Improving health care;
    5. Providing more affordable housing for young and/or older, poorer U.S. residents;
    6. Improving the environment of the United States and making more productive use of natural resources; or
    7. A request from an interested U.S. Government agency.
    These criteria have been called the "Mississippi Phosphate" factors as they first appeared in a decision involving an employee of a company by this name." It is important to document how the applicant meets one or more of these criteria.

    Post Matter of New York Dept. of Transportation

    On August 7, 1998, the INS has instituted a new set of criteria for the national interest waiver. These criteria as defined in Matter of New York Department of Transportation are as follows

    1.       It must be shown that the alien seeks employment in an area of substantial intrinsic merit (decided on an ad hoc basis).

    2.       It must be shown that the proposed benefit will be national in scope, and

    3.       The petitioner, either the employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

    The third criterion appears to be the defining feature of the test.  It is not sufficient for the petitioner to simply enumerate the alien's qualifications, or simply state that the alien qualifies due to the important role played by the alien in a given project.  The alien him/herself must clearly present a significant benefit to the field of endeavor.  There must be a clear establishment that the alien's past record justifies projections of future benefit to the national interest. 

    In addition, you will need to compile a "substantial" number of recommendation letters (as many as you can) from recognized experts in your field regarding your accomplishments, qualifications, and projected future benefit to the nation.

    Prior to August 1998, this was the most popular alterNATIVE to bypass the PROCESSING OF labor certification application.

    There are two popular alternatives that allow the qualified individual to apply for the Permanent Residence without going through the process of Labor Certification.

    The two popular alternatives are as follows:

    A.     NIW - EB2 (can be submitted by yourself or employer)    

    First, you should be aware that, as of August 7, 1998, the Immigration and Naturalization Service instituted an new set of criteria for the national interest waiver.  These criteria, as defined in the Matter of New York Department of Transportation, Int. Dec. #3363 (Acting Assoc Comm. 1998), are as follows: 

    1.    It must be shown that the alien seeks employment in an area of substantial intrinsic merit (decided on an ad hoc basis),

    2.   It must be shown that the proposed benefit will be national in scope, and

    3.   The petitioner, either the employer or the alien, must establish that the alien will serve the  national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. 

    The third criterion appears to be the defining feature of the test. It is not sufficient for the petitioner to simply enumerate the alien's qualifications, or simply state that the alien qualifies due to the important role played by the alien in a given project. In this case, INS concludes that "The labor certification process exists because protecting the jobs and job opportunities of U.S. workers having the same objective minimum qualifications as an alien seeking employment is in the national interest. An alien seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process...Nothing in the legislative history suggests that the national interest waiver was intended simply as a means for employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification process...By statute, "exceptional ability" is not by itself sufficient cause for a national interest waiver...Regardless of the alien's particular experience or skills, even assuming they are unique, the benefit the alien's skills or background will provide to the United States must also considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process...A shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver. Given the labor certification process was designed to address the issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than waiving a labor certification.  

    Therefore, you will need to compile a "substantial" number of recommendation letters (as many as you can) from recognized experts in your field regarding your accomplishments, qualifications, and projected future benefit to the nation. But you should be aware of that in New York Department of Transportation, INS expressly states that "by statute, exceptional ability is not by itself sufficient cause for a national interest waiver....."  

    Further, USCIS has increasingly looked into the number of times that your research papers were cited to evaluate the influence of your achievements in the field. 

    B. Outstanding researcher or professor - EB1 (must be submitted by employer) 

    An outstanding researcher or professor is a person who is recognized internationally as outstanding in a specific academic area  

    As the goal of the regulatory criteria is to demonstrate that the beneficiary has won international recognition as an outstanding researcher, therefore, this is not simply a case of counting pieces of supporting documentation represented. USCIS must evaluate the evidence presented to decide whether the beneficiary has been recognized internationally as outstanding in a specific academic area. 

    USCIS states that the evidentiary lists in the regulations were designed to provide for easier compliance by the petitioner and easier adjudication by the USCIS, the statutory and regulatory standard is international recognition as outstanding. The assertion that the beneficiary has outperformed other researchers, even if true, does not necessarily establish the required international recognition. USCIS pointed out that most professors serve on mastersEthesis review panels. USCIS explained that due to the publish or perish syndrome in academia, it is almost a job requirement at many universities that professors and researcher publish papers. If this evidence of publication standard is interpreted too loosely, CongressEintent to limit the first preference to those who “had done something out of the ordinaryEwould be diluted. USCIS noted that in many fields of research, publication of one’s work is almost universal, and therefore not an automatic sign of international recognition. USCIS also stated that peer review is common within fields that produce published research, and given that every professional conference appears to involve hundreds of such reviewers, therefore, it is necessary to establish that only internationally recognized researchers are called upon to perform reviews of this kind. Further, USCIS indicated that a basic purpose of scientific research is to uncover information and develop technology that was not previously known or available. It does not follow that every researcher who actually succeeds at this task is outstanding. 

    For additional information, you may link from our Home Page to USCIS official site at

    1A.   U.S. Citizenship and Immigration Services (USCIS)

    1-3.  Immigration through Employment (EB-1, EB-2, EB-3) 

    C. LC for EB-2 (must be submitted by employer) 

    If your LC application and NIW petition both are eligible for EB2 category, our office would like to advise you a much fast and smooth process of LC application should be undertaken. Please note that under the current PERM procedures, the processing time could be shortened to 45-90 days by a computer-generated decision if the LC applications are not selected for audit. For addition information on the LC process, you may link from our Home Page to the Labor Department official site at: 

    2.       U.S. Department of Labor (DOL)

    2-1.    Labor Certification

    2-17   PERM Effective on March 28, 2005  

    Please note that in addition to filing your LC application, you may still try the I-140 petition for NIW if you are able to collect sufficient supporting documentation including a printout of the total citation count of all your publications to qualify yourself for NIW.  For your information, the reported AAO decisions on NIW can be found by linking to our Home Page to USCIS official site at: 

    1A.    U.S. Citizenship and Immigration Services (USCIS)

    1-16. Immigration Laws, Regulations and Guides

             Administrative Decisions

             B5 - Members of the Professions holding Advanced Degrees or Aliens of Exceptional Ability

    For general information on immigration visa quota and the processing times, you may link from our Home Page to the USCIS and State Department official sites at: 

    1A.   U.S. Citizenship and Immigration Services (USCIS)

    1-8.  Processing Dates at Service Centers and District Offices 

    3.      U.S. Department of State - Visa Services

    3-10. Visa Bulletin 

       **The priority date mentioned in the Visa Bulletin is the date your LC application received by the  Labor Department for processing  

        The history of immigrant visa number availability can be found in Archived Bulletins. 

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    National Interest Waiver Application Data Sheet

    1. Your overseas address (in English and your native language)
    2. Date and place of birth (city and country)
    3. Spouse (if married): name, address and nationality
    4. Children (if any): names, dates and places of birth, present addresses
    5. Social Security Number (yours, spouse's, and children's)

    Documents to be Submitted

      1. Copy of I-94 Card (Both sides), I-20 (if you are a F-1 holder)
      2. Names and addresses of Universities you attended and field of study (From: mo/yr To: mo/yr)
      3. Copy of passport (pages indicating date & place of birth, visa issued by U.S. Government, passport number and expiration date).
      4. Your Publication/Research Paper/Abstract
      5. Your Resume
      6. Statement/Letter from your Employer about your job title, duties and pay
      7. Recommendation letters from recognized experts in your field regarding your outstanding research abilities and accomplishments
      8. Evidence of your outstanding research achievements (as much as possible):

      ˇ          Receipt of major prizes or awards for outstanding achievement in the academic field,

      ˇ          Membership in association in the academic field, which requires outstanding achievements of their member,

      ˇ          Published material in professional publications written by others about your work in the academic field,

      ˇ          Participation on a panel, or individually, as a judge of the work of others in the same or an allied field,

      ˇ          Original scientific or scholarly research contributions to the academic field, or

      ˇ          Authorship of scholarly books or articles, in scholarly journals with international circulation, in the academic field;

      USCIS has increasingly looked into the number of times that your research papers were cited to evaluate the influence of your achievements in the field.

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    Copyright © 1998 Jerry C. Chang Law Office, P.C.