EB-2 National Interest Waiver: What Constitutes National Interest?

by Victoria Chen, Esq., J.D.

Generally, application of second preference of employment-based immigrant visa, unlike first preference, requires a specific job offer and labor certification. However, a foreign person may seek a waiver of the offer of employment by establishing that his admission to permanent residence would be in the “national interest “.

What is “National Interest“ ? The Standard of Law is Unclear

The Immigration Act of 1990 states that the standards for national interest waiver under the Eb-2 category are “significantly above that necessary to prove prospective national benefit “. However, the regulations provide no further explanation of what standards are necessary to qualify for a national interest waiver. In contrast to the regulatory formulations provided in other areas of employment-based immigration, in which USCIS has increasingly favored a checklist approach, the national interest area is devoid of checklists. USCIS believes it appropriate to leave the application of this test as flexible as possible although clearly an alien seeking to meet the standard must make a showing significantly above that necessary to prove “prospective national benefit. “ The burden will rest with the applicant to establish that exemption from or waiver of the job offer will be in the national interest. Each case will be judged on its own merits.

Recent Trends of Approved Cases

A substantial amount of case law from AAO (Administrative Appeal Office) decisions has provided guidance of some trends:

A. Higher Approval Rate for Science Field Generally, a higher approval rate is found for scientific occupations and a lower approval rate for social science applications and varying results with business applications and those for aliens in the arts.

B. Recommendation letters from Government Officials Helps Substantially: As suggested by the INS (now the USCIS) in its regulations, letters from government officials and agencies attesting to the national interests which will be served by the alien’s permanent residence will greatly increase the chances of success in a national interest waiver case.

Conclusion from Opinions and Decisions

The range of cases and decisions indicates that the government requires a fairly direct benefit to the community-at-large before it will agree that a job is in the national interest. A job, for instance, that consists of basic research in attempting to find a cure for AIDS virus will satisfy this requirement. A job that results in the rescue of a company from bankruptcy and that saves dozens of other jobs will also meet the burden. Factors that have been considered in successful cases include:

A. The foreign person’s admission will improve the U.S. economy.

B. The foreign persons’ admission will improve wages and working conditions of U.S. workers.

C. The foreign persons’ admission will provide more affordable housing for young, aged, or poor U.S. residents.

D. The foreign persons’ admission will improve the U.S. environment and lead to more productive use of the national resources.

E. The foreign persons’ admission is requested by an interested U.S. government agency.

These factors should not be considered exhaustive. For instance, cultural benefit is not listed, but it has been considered favorably for cases involving the arts. Applying these criteria, or variations involving other factors such as cultural enrichment, the Service Centers have found national interest in an array of occupations, including: corporate vice-president (in a paper-recycling company); computer programmer (of computer programs that locate disposal sites for radioactive waste); anthropology professor (specializing in the cocaine-producing region of Peru, knowledge of which is necessary to U.S. drug interdiction efforts); and mall general manager (of a new shopping mall that local government officials believed vital to local economic well-being).

To conclude, it might be confusing that the law and USCIS regulations have not been specifically provide a clear definition or checklist for national interest waiver. However, it can benefit petitioners who are creative about their theories concerning national interest and are able to submit substantial evidence to satisfy the burden of proof. Chen Immigration has been helping clients come up with strategies to argue their occupations are in national interest and satisfy the burden of proof.

from Chen Immigration Law Associates

North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

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