EB-2 – National Interest Waiver

Exceptional Ability With A National Interest Waiver of the Labor Certification

An individual who can demonstrate exceptional ability in a defined field may qualify for a “national interest waiver” of the labor certification requirement. If a waiver is granted, the individual will qualify for lawful permanent residence without having to file for a labor certification application with the U.S. Department of Labor. Physicians who work in medically underserved areas may also qualify for a national interest waiver. The individual may either self petition or have a U.S. employer petition on his or her behalf. One key factor that must be demonstrated in this category is that the individual’s work in the United States will be in the national interest.

In order to qualify for this category the individual must not only demonstrate that he or she has exceptional ability, but that his or her work is in the national interest. First, the individual must demonstrate “exceptional ability.” Exceptional ability is defined as “significantly above that ordinarily encountered” and must be documented by at least three of the following:

• Advanced degree in the claimed field;
• Letter from an employer (past or present) confirming at least ten years of experience in the field;
• License in the claimed field;
• High remuneration/salary demonstrating exceptional ability;
• Professional association memberships in field;
• Recognition from government, professionals or peers for significant contributions and achievements in the field; or
• Comparable other evidence not mentioned above.

Second, the individual must demonstrate that his or her work is in the national interest. There are seven factors that are considered in determining the national interest. They are:

1. Improving the U.S. economy;
2. Improving wages and working conditions for U.S. workers;
3. Improving education and programs for under qualified workers and children;
4. Improving healthcare;
5. Improving the U.S. environment;
6. Providing more affordable housing; or
7. If there is an interested government agency request for the waiver.

The government will look to the following to determine if the individual’s exceptional ability is in the national interest: whether (1) the field is of substantial intrinsic merit, the (2) benefit is national in scope, and if (3) a labor certification were required, it would adversely affect the national interest.

This category of applications tends to have a high incidence of requests from the government for additional evidence to qualify the individual. Extensive and quality documentation must be provided to the government.

A national interest waiver may also be obtained for physicians who work in medically underserved areas. The physician must agree to and work full time for five years in a medically underserved area, or VA hospital. Only after the physician has worked for the full five years will he or she be able to adjust to permanent residence status.

How to File

Form I-140 is completed along with the supporting documentation demonstrating that the individual is exceptional and that the individual’s work will benefit the nation as a whole. Additionally, ETA Form 9089 or ETA 750 Part B must be completed by the individual for the waiver of the labor certification. In some cases, concurrent filing of the I-485 (application for adjustment of Status) may be advantageous. Please contact our office for assistance in assessing your qualifications for this category as well as preparation of the petition.

Dependents

Spouses and unmarried children under the age of 21 would qualify for lawful permanent residents and can apply at the same time as the primary applicant.