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Member of Bar of United States District Court for the Southern District of Texas

National Interest Waiver

National Interest Waiver

I. What is National Interest Waiver?

Usually, in applying permanent residence ("Green Card"), one needs a job offer from an employer and an approved Labor Certification application before filing permanent resident application. However, The Immigration Act of 1990 created a NEW CATEGORY OF THE "NATIONAL INTEREST WAIVER" for employment-based immigration for members of the professionals holding advanced degrees (masters and higher, or bachelors plus at least 5 years of employment experience, involving incremental responsibility in the profession) and individuals of Exceptional Ability of the arts, sciences, or business. Applicants usually are required to show to the Immigration and Naturalization Service that he or she at least meets three out of following six requirements:

1.     An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university , school, or other institution of learning relating to the area of exceptional ability;

2.     Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

3.     A license to practice the profession or certification for a particular profession or occupation;

4.     Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

5.     Evidence of membership in professional associations; or

6.     Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

There is also a catch-all provision under this section that if the applicant believes with sufficient evidence that above-mentioned standards do not apply to his or her occupation, then the applicant may submit comparable evidence to establish eligibility. To convince the INS to accept such evidence, one needs to show his or her unique background/qualifications/achievements that the usual standards would not be entirely appropriate for the particular applicant.

National Interest Waiver-based permanent residence application is in the category of Second Employment-Based Preference and this preference usually requires a job offer. However, the national interest waiver applicant needs to show to the INS that a waiver of such requirement would be indeed in the interest of the United States and therefore, such application shall not subject to the usual labor certification requirement.

II. Matter of New York State Department of Transportation
The Office of Administrative Appeals, in the NYSDOT decision, established a three-prong test to determine whether a waiver of job offer is in the national interest. After NYSDOT, to meet the national interest threshold, a petitioner/alien must establish that:

1.     He/she seeks employment in an area of substantial intrinsic merit;

2.     The proposed benefit will be national in scope; and

3.     The national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by first making the position available to U.S. workers.

III. Factors to Be Considered for Granting National Interest Waiver

1.     Improving the U.S. economy;

2.     Improving wages and working conditions of U.S. workers;

3.     Improving education and training programs for U.S. children and under-qualified workers;

4.     Improving health care;

5.     Providing more affordable housing for young and/or older, poorer U.S. residents;

6.     Improving the environment of the United States and making more productive use of natural resources;

7.     Improving international cultural understanding; and/or

8.     A request from an interested U.S. government agency.

The processing time of I-140 petition of National Interest Waiver varies on different cases. Some only takes 3 months, while some takes approximately 8-12 months. Once the I-140 petition is approved, the National Interest Waiver can apply for Green Card through Visa Processing at U.S. Consulate or Adjustment of States at an INS office. However, because of the increasing backlog in second preference category, one now must wait for several years to file adjustment of status application.

IV. The Advantages of Applying National Interest Waiver

1.     It is not necessary for the Applicant to have a job offer or show that employment will be in a permanent position.

2.     Unlike the majority of employment-based immigrants, the individual eligible for a National Interest Waiver does not need to obtain Labor Certification from the Department of Labor.

3.     No Employment Contract is required.

4.     If an individual makes an application while employed with a company, the application is not effectively canceled by the termination of the Applicant's employment and/or his or her acceptance of a new position.

5.     An individual who is applying for a National Interest Waiver does not have to be concerned about the amount of his salary.

6.     An individual who is applying for an National Interest Waiver application does not have to have an advanced degree when he or she can show "exceptional ability".

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