Permanent Residence Through a National Interest Waiver

A person whose immigration can be shown to be in the national interest of the United States may avoid the labor certification process to obtain permanent residency. No job offer is required for the National Interest Waiver, thereby allowing qualified persons to petition on their own behalf. National Interest Waiver petitions fall under the second preference employment-based immigrant visa category (EB-2), which is available to individuals with advanced degrees or to individuals who possess exceptional ability in the sciences, arts or business.

An “advanced degree” is defined as any U.S. academic or professional degree (or a foreign equivalent) above the bachelor's degree level. The law requires completion of a four-year bachelor's degree, plus at least five years of progressive experience in the specialty, to be recognized as the equivalent of an advanced or master's degree. The alien must have actually completed the underlying four-year bachelor's degree because USCIS rules do not allow the alien to demonstrate the equivalent of a bachelor's degree through a combination of other education and experience.

“Exceptional ability” is defined as a degree of expertise significantly above that ordinarily encountered. It may be demonstrated by meeting at least three of the following six requirements set forth by the USCIS, and must be demonstrated apart from consideration of national interest, the other prong of the application:

  • An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.
  • Evidence in the form of letters from current or former employers showing that the alien has at least 10 years of full-time experience in the occupation for which he/she is being sought.
  • A license to practice the profession or certification for a particular profession or occupation.
  • Evidence that the alien has commanded a salary, or other remuneration for services, that demonstrates exceptional ability.
  • Evidence of membership in professional associations.
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations.

While the individual must meet at least three of the above evidentiary standards as set out in the current regulations, mere satisfaction of this basic requirement is not necessarily dispositive of whether the beneficiary will be considered an alien of exceptional ability. The USCIS notes that the requirements listed in the regulations are intended only as a “guideline” for the petitioner and providing evidence of them does not necessarily mean that he/she meets USCIS' standard for exceptional ability. The Service must still determine whether the alien has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Besides demonstrating exceptional ability, the foreign national must establish that his or her work is in the “national interest.” To do so, the foreign national must demonstrate that his or her work:

  • is in an area of substantial intrinsic merit;
  • provides a benefit that is national in scope; and
  • serves the national interest to a substantially greater degree than an available U.S. worker having the same minimum qualifications.

While the Exceptional Ability/National Interest Waiver category requires high standards in regard to the applicant's qualifications, Goel & Anderson has assisted numerous employers in helping their key employees successfully qualify for this category. Our expertise with National Interest Waiver cases is a key factor in guiding clients to formulate a strong case where approval is not certain. Please contact us to discuss the viability of a particular case.