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.

As a practical matter, the advanced degree in and of itself is not sufficient. The beneficiary must not only have the advanced degree, but also satisfy the “national interest” test, which typically involves demonstrating exceptional ability as well.

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. Filing a NIW  petition is advantageous in that it allows the applicant to bypass the Labor Certification process, and enables the employer (if any) 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.

There is no single definition of the “national interest,” but USCIS has generally considered the following criteria to be in the “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.

Furthermore, in the 2016 decision Matter of Dhanasar, the Administrative Appeals Office (“AAO”) reiterated and expanded this list to state that an endeavor’s merit may be demonstrated in a range of areas such as:

• business,
• entrepreneurialism,
• science,
• technology,
• culture,
• health, or
• education.

In expanding this list, the AAO followed the Department of Homeland Security memorandum issued on November 20, 2014. This memorandum stated that USCIS should issue regulations or guidance to clarify NIW standards, with the goal of enhancing opportunities for “foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the United States” to benefit from the NIW category.

In Dhanasar, the AAO revised the three prong test for establishing that an applicant’s work is “in the national interest.”  This three prong test served as a revision to the 3 prong test established in the prior 1998 AAO precedent decision In re New York State Department of Transportation (NYSDOT). The current three prong test is that:

1. The foreign national’s proposed endeavor has both substantial merit and national importance;
2. The foreign national is well positioned to advance the proposed endeavor; and
3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

These restated criteria in Dhanasar enable more applicants to present themselves as eligible to file a NIW petition than the previous NYSDOT criteria. However, as NIW petitions are approved in USCIS’s discretion, USCIS may continue to challenge and ultimately deny a good percentage of petitions filed under this category.

For potentially qualified applicants, the benefits of the national interest waiver immigrant visa petition may outweigh the risks. A well-documented NIW immigrant visa petition would document that the applicant’s work satisfies the three prong test and furthers the national interest in as many of the outlined criteria as possible.

This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm. Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.