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EB-2 Overview: National Interest Waiver

National Interest Waivers

Labor certification is not required for foreign nationals who meet the criteria for a national interest waiver under the employment-based second preference category. A national interest waiver, in effect, waives the job offer requirement for foreign nationals who are members of professions holding advanced degrees or individuals with exceptional abilities in the arts, sciences, or business.

The threshold criteria for a national interest waiver are as follows:

  1. The foreign national’s work must be in an area of substantial intrinsic merit;
  2. The proposed benefit of the foreign national’s work must be national in scope; and,
  3. The foreign national must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

The third criterion is the most difficult to satisfy. The candidate must possess unique and skills which present a benefit so substantial as to outweigh the inherent national interest in protecting U.S. workers through the labor certification process. Essentially, the candidate must have a track record of success, evidencing the candidate’s individual influence on his or her field as a whole.

In adjudicating national interest waiver cases, USCIS examiners consider whether a grant of a waiver will result in a number of factors, which include, but are not limited to the following:

  1. The improvement of the national economy;
  2. The improvement of U.S. wages and working conditions;
  3. The improvement of education and training programs for children and under-qualified workers;
  4. The improvement of healthcare;
  5. More affordable housing;
  6. Improvements to the environment and the use of natural resources; and,
  7. A request from an interested U.S. government agency.

An offer of employment is not required for EB-2 petitions requesting national interest waivers. Therefore, a candidate may self-petition without sponsorship from a U.S. employer. However, the candidate must demonstrate that he or she will continue to work in the area of his or her expertise to serve the national interests.

Premium processing service is not currently available for this category.

Exceptional Ability: Foreign nationals who meet the criteria for EB-2 classification based on exceptional ability in the sciences, arts, or business may bypass the labor certification requirement. “Exceptional ability” is defined as “a degree of expertise significantly above that ordinarily encountered.”

To satisfy the standard of proof, EB-2 petitions for candidates with exceptional abilities must include evidence of at least three of the following:

  1. Degree relating to the area of exceptional ability;
  2. Letter(s) from current employer and/or former employer(s) showing at least 10 years experience;
  3. Licensure or certification to practice the profession;
  4. Evidence that the foreign national has commanded a high salary or other remuneration for services as a result of exceptional ability;
  5. Membership in associations in the field for which classification is sought which require outstanding achievements; and,
  6. Recognition for achievement and significant contributions to the industry or field of endeavor by peers, governmental entities, or professional/business organizations.

Unlike EB-2 petitions requesting national interest waivers, an offer of employment from a U.S. employer is required for EB-2 classification based on exceptional ability. Premium processing service is not currently available for this category.