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EB-2 National Interest Waiver

Understanding EB-2 National Interest Waivers

EB-2 national interest waivers allow someone whose work stands out as extraordinary and who will benefit the nation to obtain permanent residency without filing a labor certification with the Department of Labor. This can save an enormous amount of time and money.

What Does ‘National Interest’ Mean?

Since there is no statute or regulation that defines “national interest” the term is defined by case law. Case law provides a non-exhaustive set of criteria that can be used to establish work that is in the national interest. While these factors are helpful guidelines, it is important to note that not all the requirements must be met. The following are examples of work that is in the national interest:
Since there is no statute or regulation that defines “national interest” the term is defined by case law. Case law provides a non-exhaustive set of criteria that can be used to establish work that is in the national interest. While these factors are helpful guidelines, it is important to note that not all the requirements must be met. The following are examples of work that is in the national interest:
In 2016, The Administrative Appeals Office (AAO) within the Department of Homeland Security issued a precedential decision outlining a new framework for adjudicating National Interest Waiver petitions. The appeals body stated that this new test would provide clarity by applying a more flexible standard and help USCIS better advance the purpose of the program which is aimed to benefit the United States. In Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), the AAO outlined the following three-pronged test for National Interest Waiver petitions:
  • The foreign national’s proposed endeavor has both substantial merit and national importance; and
  • The foreign national is well-positioned to advance the proposed endeavor; and
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
Since 2016, National Interest Waiver petitions must squarely identify all three prongs of the Dhansar test.

What are examples of cases that have been approved for a National Interest Waiver petition?

  • Work that improves the U.S. economy and/or wages and working conditions of U.S. workers
  • Work that improves education for U.S. children and/or training for underqualified workers
  • Work that improves the health of the U.S. population or improves the U.S. health care system
  • Work that provides affordable housing for vulnerable U.S. residents
  • Work that improves the environment and/or makes more efficient use of natural resources in the U.S.
  • Work that has been requested because of the national interest by a U.S. government agency

What is Filed with a National Interest Waiver Green Card Petition?

The National Interest Waiver is submitted by filing form I-140, along with supporting evidence such as letters of support from experts in the field of endeavor, evidence of the applicant’s extraordinary work of national interest and other forms. Sometimes the I-140 can be concurrently filed with the I-485 green card or Application for Adjustment of Status. When the I-485 is filed the applicant can also file an application for employment authorization.

We Can Help You Prove Your Work is in The National Interest

At Becker & Lee LLP, business and employment-based immigration is one of our primary focus areas. Our attorneys have advised a range of talented individuals whose work is in the national interest, including green-energy scientists, vital medical researchers, investors, engineers, and many others.
Our EB-2 national interest waiver lawyers offer comprehensive representation to help increase chances of success in the visa application process. Contact our San Francisco Bay Area law firm to learn more about your options.

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