EB2: National Interest Waiver

The Employment Based Second Preference Category is for members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences or business. Although this category generally requires an employer and labor certification, the Attorney General may waive this requirement if the work of the alien is in the “national interest.”

Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the national. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

In re New York State Department of Transportation

For the past 20 years USCIS required that you meet at least three of the criteria below and demonstrate that it is in the national interest that you work permanently in the United States.  The main requirement for a National Interest Waiver is a three-part test set forth according to In re New York State Department of Transportation, Interim Decision #3363, August 7, 1998. You must meet all three parts to qualify for National Interest Waiver:

What you do must be of “substantial intrinsic merit;”

  • The benefits of your work must be “national in scope” (as opposed to being purely local); and
  • You must establish that your past record of achievement demonstrates that you can benefit the national interest to a “substantially greater degree than would an available US worker having the same minimum qualifications.”

Matter of Dhanasar

On December 27, 2016, Matter of Dhanasar was published and made available to the public. After nearly 20 years, the highly-criticized NYSDOT standard for National Interest Waiver (NIW) petitions was replaced. Under Matter of Dhanasar an NIW may be approved if

  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.

Exceptional Ability

The threshold requirement for a National Interest Waiver is a master’s degree or “exceptional ability” in your field. Exceptional ability may be evidenced by at least three of the following ten forms of documentation:

  • Receipt of lesser nationally or internationally recognized prizes or awards
  • Membership in associations that require outstanding achievement
  • Published material about you in professional or major trade publications or other media
  • Served as a judge of the work of others (individually or on a panel)
  • Original contributions of major significance in the field (scientific, scholarly, artistic, athletic, or business-related)
  • Authorship of Scholarly articles or publications in profession or major trade publications or media
  • Display of work at Artistic exhibitions or showcases
  • Performance of a Leading or critical role for distinguished organizations
  • Receipt of High salary or remuneration in relation to others in the field
  • Commercial success in performing arts

Please contact our office to review your credentials and see if you qualify for a National Interest Waiver.