National Interest Waiver
To receive a national interest waiver, the petitioner must meet the statutory requirements in Section 203(b)(2) of the Immigration and Nationality Act. This Section states in relevant part:
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability.
(A) In General. - Visas shall be made available . . . to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver of Job Offer. - The Attorney General may, when he deems it to be in the national interest, waive the requirement of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
Under Section A, the petitioner must establish that the alien is (i) either a "member of the professions holding advanced degrees or their equivalent" or (ii) has "exceptional ability" in one or more of the enumerated fields; and (iii) will "substantially benefit prospectively" the national economy, cultural or education interests, or welfare of the United States. Once the petitioner meets the threshold requirement of subsection A, the petitioner must demonstrate that forgoing the requirement for a job offer and labor certification (a test for availability of U.S. workers) can be "deemed to be in the national interest."Id.
Under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the petitioner must meet the following three prongs to establish that the request deserves a national interest waiver:
- The foreign national's proposed endeavor has both substantial merit and national importance.
- Merit may be demonstrated in "a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education" Id
- National importance impacts the endeavor's "potential prospective impact." Id. An endeavor may have "national importance….because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances." The impact is not confined in geographic terms but points to broader implications. Id.
- The foreign national is well positioned to advance the proposed endeavor.
This prong "shifts the focus from the proposed endeavor to the foreign national." The petitioner must establish that the alien is "well positioned to advance the proposed endeavor." Id.
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
If these three elements are satisfied, "USCIS may approve the national interest waiver as a matter of discretion. " Id.
If you believe that a National Interest Waiver may be an option for you, call the Chicago immigration lawyers of Zneimer & Zneimer P.C. at 773-516-4100 or contact us online for a consultation to discuss your immigration law issues or questions.