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:
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:
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:
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.