National Interest Waivers
“I am a person with exceptional ability in the arts, sciences, or business”
There is special employment-based immigrant visa set aside for aliens who, because of their exceptional ability in the sciences, arts or business, will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
The word “exceptional” in the context of this category means that you must possess a degree of expertise significantly above that ordinarily encountered in your field. To demonstrate that you possess the requisite degree of expertise, you must satisfy at least 3 of the following criteria:
- An official academic record shows that the you have has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of your exceptional ability;
- Evidence in the form of letter(s) from current or former employer(s) shows that you possess at least 10 years of full-time experience in the occupation for which your are being sought;
- You possess a license to practice your profession or a certification for a particular profession or occupation;
- You can present evidence that you have commanded a salary, or other remuneration for services, which demonstrates your exceptional ability;
- You are a member in one or more professional associations; or
- You can present evidence of recognition for your achievements and significant contributions to your industry or field by your peers, governmental entities, or professional or business organizations.
If the above standards do not readily apply to your occupation, you may submit comparable evidence to establish your eligibility.
Under this category, you must normally have a job offer and obtain a labor certification for the proposed position. , you may be able to avoid the requirement of a labor certification or job offer under the following circumstances:
a.) you will be employed as a licensed physical therapist or as a fully-licensed professional nurse; or
b.) you can demonstrate that your admission would be in the national interest (also known as a “national interest waiver”)
Adjudication of national interest waiver matters is done on a case-by-case basis.
Interestingly, neither the (“INA”) nor the applicable regulations define the term “national interest”. Nevertheless, supplementary information to the regulations implementing the (“IMMACT 90”) state that the application of this test should be .
In the case of , EAC 92-091-50126 (AAU July 21, 1992), the Administrative Appeals Unit set out certain guidelines for evaluating cases requesting waivers in the national interest. Specifically, if it can be demonstrated that allowing you to enter the United States would a.) improve the United States economy; b.) improve wages and working conditions of U.S. workers; c.) improve education and training programs for U.S. children and other qualified workers; d.) improve health care; e.) provide more affordable housing for young and/or older poorer U.S. residents; f.) improve the U.S. environment and making more productive use of natural resources; g.) involves a request from an interested government agency; then you stand a fair chance of obtaining a national interest waiver.
However, according to a more restrictive recent precedent decision, your application must also demonstrate that you will seek employment in an area of “substantial intrinsic merit”; that the proposed benefit will be national in scope (rather than simply regional or local); and that the national interest would be adversely affected if a labor certification were required of you.
The standard is much lower for foreign physicians who agree to work full time in a designated health professional shortage area or in VA hospital, where as federal agency or State department of public health has determined that the physician’s work is in the public interest. The physician may not be eligible for a green card until he has worked full time for 5 years in a shortage area or VA hospital (not including time spent in J-1 status).
Applicants for National Interest Waivers must present extensive documentation detailing the nature of their education, experience, and the potential contribution to the National Interest. Ortega-Medina & Associates can help you determine whether you are an appropriate candidate for this type of application. If you are, our firm will be able to help you present the strongest case possible to substantially increase your success in obtaining your immigrant visa.