Foreign nationals may be eligible for a second preference employment-based immigrant petition or “National Interest Waiver” if they are a member of a profession that requires an advanced degree or its equivalent, or have exceptional ability in their field. The advantage of the National Interest Waiver category is that it exempts the foreign national from obtaining a job offer (the foreign national may self-petition) and waives the labor certification requirement, provided it is in the best interest of the U.S. The immigration attorneys in our law firm have considerable experience in assisting petitioners seeking a National Interest Waiver.

Requirements of National Interest Waivers

The standards for National Interest Waivers are laid out in Matter of New York State Department of Transportation (NYSDOT), a 1998 decision of the Administrative Appeals Office, Department of Homeland Security. It is designated as a precedent decision binding on all future cases and continues to provide the standards by which the immigration authorities adjudicate National Interest Waiver petitions. NYSDOT requires the foreign national to establish that:

  1. The employment is in a field of “substantial intrinsic merit” or work that substantially furthers a national goal;”
  2. The benefits to be provided will be national in scope, and not simply local; and
  3. The national interest would be adversely affected if a labor certification were required. In other words, the national benefit of the proposed work is so significant that it clearly outweighs the important public interest in maintaining certain minimum wage and employment standards, through requirement of a labor certification.

The following evidence has been used to satisfy these standards:

  • Numerous letters from experts in the foreign national’s field of work or study, such as university professors or industry leaders, attesting to the significance of the foreign national’s work;
  • Proof of numerous citations to the foreign national’s published works;
  • Receipt of prestigious awards and fellowships;
  • Letters of recommendations, to include current and previous employers;
  • Licenses and certifications;
  • Receipt of research grants from federal and state governments and private institutions; and/or
  • Magazine and newspaper articles highlighting the foreign national’s achievements.

Although the standards set for obtaining a National Interest Waiver are high, they have been granted to high achievers in a wide variety of professions. Our Michigan attorneys have considerable experience in assisting foreign nationals seeking National Interest Waivers.

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