BY Gregory J. Boult & Nancy E. Miller

Individuals with an advanced degree or with exceptional ability can pursue an employment-based immigration visa petition which, if approved, will allow them to apply for lawful permanent resident status in the United States.  These individuals, classified under the second preference category of employment-based visa petitions, more commonly known as the EB-2 category, generally must secure a job offer from a current or prospective employer as well as an approved labor certification from the Department of Labor.  However, in a unique exception which is afforded solely to those in the EB-2 category, the requirements of a job offer and an approved labor certification can be waived if an individual establishes that his or her work will be in the national interest of the United States.  This exception is afforded through an application for a National Interest Waiver with Citizenship and Immigration Services.

In order to qualify for the EB-2 category, an individual must have earned an advanced degree which is defined as a master’s degree or higher, or a bachelor’s degree with five or more years of professional experience.  As an alternative, an individual must establish that he or she is of exceptional ability in his or her respective field.  While qualifying as an individual with an advanced degree is generally straightforward, determining whether an individual is of exceptional ability is often more difficult as no single criteria exists.  Instead, Citizenship and Immigration Services looks to a variety of factors in order to reach a final determination.  These factors include an individual’s education, employment history, and professional achievements.  Once it is established that an individual qualifies for the EB-2 category, consideration can be afforded to his or her eligibility to apply for a National Interest Waiver.

In order to establish eligibility for a National Interest Waiver, an applicant must evidence three things.  First, that he or she will pursue work in an area of substantial intrinsic merit.  Second, that the proposed benefit of the applicant’s work will be national in scope.  And third,

that the national interest of the United States would be adversely affected if labor certification were required.

The first element requires an applicant to establish the importance of, and the prospective benefit from, his or her work.  Utilizing the example of a scientist conducting cancer research, it could be argued that research involving the treatment and cure of cancer is of substantial intrinsic merit as such research is important in addressing a significant health concern, and could produce tangible benefits to the health of United States citizens.

The second element requires that the proposed work reach all of the United States and not just a single employer or those within a local area.  Returning to the example of the scientist conducting cancer research, the benefits of treating and curing cancer are national in scope – all citizens of the United States could benefit from such research, not just a select group such as a single employer or those within a limited geographic region of the United States.

The final element is the most challenging hurdle to obtaining a national interest waiver.  In order to meet the criteria for this final element, an applicant must establish that he or she will serve the national interest to a substantially greater degree than his or her peers.  Thus, an applicant must establish that he or she is clearly distinguishable from other workers with the same or like qualifications.  This step, as with establishing whether an individual is of exceptional ability for EB-2 classification, is challenging as no single criteria exists.  Instead, Citizenship and Immigration Services examines a variety of factors to include whether an applicant has been responsible for innovative work, whether an applicant has achievements which have had an impact on his or her field, and whether an applicant has achieved a degree of expertise in his or her field which is above that normally encountered.

An experienced and knowledgeable immigration attorney will be able to determine whether an individual not only qualifies for classification in the EB-2 category, but also whether he or she qualifies for a National Interest Waiver.  While this article has utilized a research scientist as an example, it is important to again note that the fields of endeavor from which an individual may seek a National Interest Waiver are broad, and many individuals may be simply unaware that they even qualify to apply for this waiver.  However, again, an experienced and knowledgeable immigration attorney can readily assist in determining a prospective applicant’s eligibility.

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