National Interest Waiver
(EB-2)

Foreign professionals who hold at least a master's degree or can prove exceptional ability in certain fields are eligible for legal permanent residence as advanced degree professionals absent the labor certification requirement. If the foreigner's field benefits the national interest (improves the United States economy, health care system, environment, education, housing, culture, technology, etc.) and the foreigner can submit evidence of prospective contributions to his or her field, he or she may qualify for a "National Interest" waiver from the labor certification process. The foreign national may self-petition or by sponsored by an employer.

In particular, the foreign national must satisfy the following requirements:

  1. The foreign national’s proposed endeavor has both substantial merit and national importance;
  2. The foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Regarding the first prong of showing substantial merit and national importance, the foreign national (or employer petitioner) is not required to show that the endeavor has the potential to create a substantial impact, since pure science and research may not translate into economic benefits for the US. Regarding whether the proposed endeavor has national significance, the impact is not to be evaluated solely geographically but on a broader scale.

Regarding the second prong, in determining whether the foreign national is well positioned to advance the proposed endeavor, the following factors may include, but are not limited to: the individual’s education, skills, knowledge, record of success in similar areas, a plan for the future, progress made in achieving the proposed endeavor and the interest of other related parties, such as users, customers or investors. The foreign national (or employer petitioner) is not required to demonstrate that he or she is more likely than not to succeed in his or her field.

Regarding the third prong, the following factors may be considered in showing that on balance it benefits the US to waive the requirements of a job offer and labor certification: in light of the foreign national’s background, whether it would be impractical for the foreign national to obtain a job offer or labor certification on the foreign national’s behalf; whether it would still benefit the US even if other qualified US workers are available; and whether the US’s interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification.

It should also be emphasized that there is no requirement of comparing the foreign national to other US workers in the same field.

Evidence submitted in support of the national interest waiver includes that filed in support of the extraordinary ability and outstanding researcher petitions (publications, presentations, awards, patents, etc.).

Labor certification requirements may be waived if a foreign worker’s employment is in the “national interest of the United States.” Consult with Attorney Monique Kornfeld for guidance: 617-323-5049