Requirements for National Interest Waiver
Any United States employer may file a petition on Form I-140 for classification of an alien under section 203(b)(2) of the Immigration and Nationality Act as an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business. If an alien is claiming exceptional ability in the sciences, arts, or business and is seeking an exemption from the requirement of a job offer in the United States pursuant to section 203(b)(2)(B) of the Act, then the alien, or anyone in the alien’s behalf, may be the petitioner.
(1) National interest. The Administrative Appeals Unit decisions have defined several factors to determine whether the alien’s admission as an employment-based second preference immigrant would prospectively benefit the national interest, including but not limited to, the alien’s individual contributions toward improving the U.S. economy, wages or working conditions, education, health care, housing, the environment, and the accommodation of the needs of a U.S. governmental agency.
(2) Initial evidence. The petition must be accompanied by documentation showing that the alien is a professional holding an advanced degree or an alien of exceptional ability in the sciences, the arts, or business.
To show that the alien is exempted the requirement of a job offer, and thus of a labor certification because of the national interest, Matter of New York State Dept. of Transportation has enumerated a three-prong standard that the petitioner must meet in order to qualify for a national interest waiver. These three standards include: (1) whether the alien is seeking employment in an area of “substantial intrinsic merit”; (2) whether the proposed benefit will be “national in scope”, rather than solely limited to a particular region; and (3) whether the alien “will serve that national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”
(3) If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.
This is only a legal opinion and not legal advice or service. Please contact attorney for legal advice or service.
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