Exceptional ability applicants and advanced degree professionals must normally comply with labor certification requirements. In 1990, Congress recognized that the Department of Labor's lengthy Labor Certification process often prevented the expeditious immigration of certain foreign nationals whose permanent presence would benefit the United States. In highly meritorious cases, both professionals with advanced degrees and persons of exceptional ability in specific fields in the sciences, arts or business may seek waivers of the job offer requirement if their immigration is deemed to be in the "national interest", under the employment based second preference (EB2) category. By waiving the job offer requirement, not only is the normal labor certification requirement waived, but individuals may also sponsor themselves for Permanent Residency rather than there being a requirement that an employer be the sponsor.

What Is An Advanced Degree?

According to the U.S. Citizenship and Immigration Services (USCIS, former INS) regulations, an "advanced degree" means any U.S. academic or professional degree or a foreign equivalent degree above that of baccalaureate. A U.S. baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the applicant must have a U.S. doctorate or an equivalent foreign degree.

Although Congress confirmed that aliens with advanced degrees may also be considered in a National Interest Waiver situation, the case law in this area appears to indicate that the advanced degree in and of itself is no longer sufficient. The beneficiary must not only have the advanced degree, but possess abilities that are beyond his/her peers.; While the advanced degree showing appears to be less than the "exceptional ability" standard and is continuing to be defined, it is advisable to qualify a national interest waiver immigrant visa petition under both advance degree and exceptional ability.

What Qualifies As Exceptional Ability?

According to USCIS regulations, "exceptional ability" means a "degree of expertise significantly above that ordinarily encountered" in the sciences, arts, or business.

To demonstrate exceptional ability, the petition must be accompanied by at least three of the following:

• An official academic record showing that the applicant has a degree relating to the area of exceptional ability;
• Employment verification letters showing that the applicant has at least ten years of full-time experience in the occupation;
• A license to practice the profession or certification for a particular profession or occupation;
• Evidence that the applicant has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
• Evidence of the applicant's membership in professional associations; or
• Evidence of recognition for the applicant's achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. Typically, such recognition can be demonstrated by publications in prominent journals, patent awards, presentations at national or international conferences, citations or other references to the applicant's work, requests that the applicant serve as a peer reviewer, and awards for achievement in the field.

If the above standards do not readily apply to the applicant's occupation, the applicant may submit comparable evidence to establish eligibility.

How to Achieve the National Interest Waiver?

Waiver of the job offer means that the individual is exempt from obtaining a labor certification and is not required to have a U.S. employer in order to file a petition. Since the national interest waiver may be filed by the individual applicant, and not by an Employer, it is the sole property of the applicant and remains valid regardless of employment status. The applicant must, however, be able to document that s/he continues to work in the field described in the petition, and that the work continues to be in the national interest. Filing such a petition is advantageous in that it allows the applicant to immigrate more quickly by bypassing the Labor Certification process, and enables the employer to avoid the expense and administrative effort of preparing the application for Labor Certification. However, there is always the risk that the USCIS examiner will not agree that the applicant's work is in the national interest. The following seven criteria are generally considered in defining "national interest":

1. Improving the U.S. economy;
2. Improving wages and working conditions of U.S. workers;
3. Improving education and training programs for U.S. children and under-qualified workers;
4. Improving health care;
5. Providing more affordable housing for young and/or older, poorer U.S. residents;
6. Improving the environment of the U.S. and making more productive use of natural resources; and
7. Involving a request from an interested U.S. government agency.

A well-documented immigrant visa petition requesting a national interest waiver would document that the applicant's work addresses as many of these criteria as possible. Furthermore, in the 1998 decision, In re New York State Department of Transportation ("NYSDOT"), the Administrative Appeals Office of the former INS imposed additional eligibility requirements for the NIW category. Specifically, NYSDOT established a three-part test to determine whether an alien meets the new requirements. These requirements are as follows:

1. The alien must seek employment in an area that has substantial intrinsic merit. NYSDOT does not provide guidance on how to determine whether an area of employment is of substantial intrinsic merit;
2. It must be demonstrated that the proposed benefit will be national in scope; and
3. It must demonstrated that the national interest would be adversely affected if the employer is required to undergo the labor certification process, specifically in that
   • the applicant would serve the national interest "to a substantially greater degree" than an available U.S. worker having the same minimal qualifications, and
   • the applicant has a record of achievements "with some degree of influence on the field as a whole", as demonstrated by a "history of valuable contribution" and a "critical role" in ongoing work in the field which has practical significance.

In order to satisfy the third component of the test, it must be shown "that it would be contrary to the national interest to potentially deprive the prospective Employer of the services of the alien by making the position sought available to U.S. workers. In addition, NYSDOT further requires "that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications." The third prong of NYSDOT is clearly the most subjective and difficult to satisfy.

Given the above subjective criteria, it is now more difficult than in the past to meet the necessary requirements. Also, in practice, NYSDOT has restricted the NIW category to only the most uniquely qualified foreign nationals who can meet the three-prong test cited above. USCIS will continue to challenge and ultimately deny a percentage of petitions filed under this category. However, for potentially qualified applicants, the benefits of the national interest waiver immigrant visa petition may outweigh the risks.

15Oct03

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