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National Interest Waivers


The National Interest Waiver is a waiver of the job offer requirement for foreign nationals who would like to obtain Permanent Residence in the U.S. in the employment based second preference category. The waiver is available to individuals who are members of the professions holding advanced degrees and individuals of exceptional ability in the arts, sciences and business. Generally, individuals who apply to immigrate in the employment based second preference, must have a job offer and the employer must obtain an approved “Labor Certification” from the Department of Labor. The USCIS regulations state that the requirement of a job offer and a Labor Certification may be waived if the work to be performed by the alien is in the “national interest”. In 1998 the Administrative Appeals Office of the USCIS issued a precedent setting decision which has substantially limited the use of the National Interest Waiver, Matter of New York State Department of Transportation. The Petitioner in this case was the New York State Department of Transportation and the employee was an individual who held a Masters Degree in Civil Engineering (Structures). In the case, a three-part test was articulated as a new, more restrictive standard for national interest waivers:

  1. It must be shown that the alien seeks employment in and are of substantial intrinsic merit;
    • In this case, it was found that the beneficiary’s field, engineering of bridges, clearly met the threshold of substantial intrinsic merit.
  2. It must be shown that the proposed benefit will be national in scope;
    • The decision reasoned that while the individual’s employment would be limited to a certain geographical area, New York’s roads and bridges connect to the national transportation system and therefore served the national interest.
  3. The Petitioner seeking the waiver must persuasively demonstrate that the national interest would be adversely affected if a labor certification were required for the alien.
    • In other words, The Petitioner must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same qualifications. In this case the AAO determined that this burden had not been met.

Advantages of National Interest Waivers

  1. It is not necessary for the Applicant to have a job offer or show that employment will be in a permanent position.
  1. 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.
  1. No Employment Contract is required.
  1. 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.
  1. Finally, an individual who is applying for a National Interest Waiver does not have to be concerned about the amount of his salary.

As per a new precedent setting case known as “Matter of New York State Department of Transportation” which was decided on August 7, 1998, the application of the National Interest Waiver category has been greatly limited. According to the new case, there are several categories which must be considered when evaluating a request for a National Interest Waiver:

  1. The alien seeks employment in an area of substantial intrinsic merit.
  1. The proposed benefit will be national in scope.
  1. The national interest would be adversely affected if a labor certification were required for the alien or in other words, the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Post-NYDOT National Interest Waiver Approvals

  1. Environmental Chemist
  2. Beneficiary specializes in catalytic use in petroleum and other fossil fuel refining, quality control, risk management and remediation. Educational credentials consist of two Masters Degrees in Chemistry and Environmental Management, a Doctorate Degree in Chemistry, and completion of post-doctoral studies in Public Policy and Management with a concentration in Environmental Policy. Evidence to support the petition included: honors and awards, reference letters from renowned experts in the field, as well as Beneficiary’s own published materials. Approval of the case was based on the following arguments:

  1. Beneficiary’s contributions to the development and dissemination of innovative research in the field of Environmental Chemistry and education are invaluable to the environmental goals of the United States for the next century.
  1. Beneficiary’s novel research and overwhelming support from leading members of U.S. governmental agencies, such as the EPA, as well as, prominent Environmental Scientists and Chemists across the world.
  1. Beneficiary’s work would lead to more productive use of natural resources, improving and protecting of the health of United States citizens, improving working conditions by eliminating hazardous by-products and high pressure/temperature equipment usage, and ensuring compliance with U.S. Federal Laws.
  • Materials Engineer and Researcher
  • Beneficiary specializes in Ceramics. Educational credentials include a Ph.D. in Ceramics, an M.S. in Ceramic Engineering, and a B.S. in Metallurgical Engineering. Approval of the case was based on the following arguments:

    1. Beneficiary’s research achievements in ceramics and glass formation in opto-electronic applications and infrared transmissions technology, as being invaluable to defense, healthcare and industry in the United States.
    1. Beneficiary’s work was national in scope and in an area of substantial intrinsic merit because of the increased demand for advanced ceramics for use in telecommunications, computers, petroleum and chemical processing, and biomedical engineering.

    Supporting documentation included appropriate reference letters, honors, awards and the Beneficiary’s published material.

  • Chemical Engineer
  • Beneficiary specializes in the critical areas of lignocellulosic biomass conversion and biofuel development. Education credentials include Ph.D., M.S., and B.S. degrees in Chemical Engineering. Evidence to support the petition included: honors, awards and membership certificates (professional associations), conference proceedings, reference letters from experts in the field, and Beneficiary’s published materials. Approval of the case was based on the following arguments:

    1. Beneficiary’s work is highly commendable based on his dedicated research achievements attained for advancement of biotechnology, particularly in bio-energy production from renewable biomass.
    1. Beneficiary’s work is critical to the United States due to the increased threat of fossil fuel depletion, and the United States’ interest in developing environmentally friendly and economically sound fuel alternatives.
    1. Beneficiary’s research would reduce foreign oil imports, reduce carbon dioxide in the atmosphere, and better the environment and health of the United States as a whole.
  • Pharmaceutical Researcher
  • Beneficiary specializes in cancer research and drug delivery systems. Educational credentials include Ph.D., M.S., and B.S. degrees in Pharmaceutical Sciences. Evidence in support of the petition included honors and awards, reference letters from experts in the field, and the Beneficiary’s published materials. Approval of the case was based on the following arguments:

    1. Beneficiary’s groundbreaking and internationally renown work in the treatment of Cervical and Prostate Cancer is of significant value for the advancement of healthcare in the United States.
    1. The benefit of the Petitioner’s work to the health and economy of the United States.

    Biomedical Researcher

    Beneficiary specializes in genetics and molecular biology. Education credentials include a Ph.D. in Life Sciences, a M.S. in Cytogenetics, and a B.S. in Botany. Evidence in support of the petition included honors and awards, reference letters from experts in the field, and the Beneficiary’s published materials. Approval of the case was based on the following arguments:

    1. Beneficiary’s groundbreaking research on the cloning of the MEN1 gene, previously attributed to sporadic endocrine tumors at the National Institutes of Health (NIH), is of great significance to the U.S. national economy and healthcare.
    1. Beneficiary’s research is national in scope, is of substantial intrinsic merit.
    1. Petitioner’s employment is not based on a shortage of qualified workers.
    1. National health and economic prosperity benefit through the dissemination of the petitioner’s research, including dramatic improvements in mortality and morbidity rates from tumors in the United States and increased revenues by improving the cost-efficiency of health care.

    Biochemist

    Beneficiary specializes in lung research and transcription factors. Education credentials include two Masters Degrees in Biochemistry and a B.S. in Chemistry. Evidence in support of the petition included honors and awards, reference letters from internationally recognized experts in the field, and the Beneficiary’s published materials. Approval of the case was based on the following arguments:

    1. Beneficiary’s contributions to the cloning and sequencing of genes related to congenital heart defects in children and cystic fibrosis, are central to the ongoing research efforts of scientists and researchers across the United States and the world.
    1. Significant improvement of national health and economy due to the Beneficiary’s research, as the Beneficiary’s unique and pivotal research will continue to enhance the understanding of the causes of many diseases.
    1. Beneficiary’s work is both national in scope and of substantial intrinsic merit.
    Wolfsdorf Rosenthal LLP

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