A Change in the Law May Make it Easier to Obtain a National Interest Waiver
Ordinarily, an individual must have a job offer and then receive certification from the Department of Labor to qualify for permanent residency under the EB-2 program. The labor certification process involves an often arduous process in which the employer must demonstrate there are no qualified and available applicants to fill the position and that employing the foreign national would not adversely affect pay or working conditions for existing workers here.
An exception is made, however, if the prospective immigrant demonstrates it would be in the national interest of the United States to waive that requirement. In the past, the law followed the rather restrictive three-part test laid out in Matter of New York State Department of Transportation, requiring the person to show they are seeking employment in an area of “substantial intrinsic merit”, that the benefit of employing the individual would be “national in scope”, and that “the national interest would be adversely affected if a labor certification were required”. The ambiguous use of the term “intrinsic” and a narrow focus on geography often led to contradictory and seemingly arbitrary decisions. The third prong of the test, though, was the most problematic and difficult to overcome, resulting in many thousands of extremely talented and educated individuals being rejected when they should not have been.
A recent precedent decision from the USCIS’s Administrative Appeals Office, however, vacated the prior decision and established a much clearer test. Under the new analytical framework, the petitioner need only show their proposed endeavor has both “substantial merit and national importance”, they are “well positioned to advance the endeavor”, and “on balance, it would be beneficial to the United States” to waive the labor certification requirement. This new test is far more straightforward and should result in the USCIS granting significantly more national interest waivers.
The national interest waiver program is among our specialties at Buda Law Group. If you are a talented innovator, entrepreneur, scientist, or other exceptional individual, feel free to contact us.
John B. Buda, Esq.
1201 W. Huntington Dr. Suite 209
Arcadia, CA 91007