Most applications for lawful permanent residence require a sponsor, whether the petition be an employment-based or family-based petition. One of the limited exceptions to this rule is the Employment-Based Second Preference National Interest waiver petition, which can be self-sponsored or employer-sponsored. The U.S. Government this year encouraged applicants in science, technology, engineering, and mathematics (“STEM”) fields to apply for National Interest Waivers.
Essentially, an EB-2 petition requires the applicant to satisfy the U.S. government that it is in the “national interest” to waive the labor certification requirement, which is standard for EB-2 and EB-3 applications.
Labor certification requires an employer to obtain a prevailing wage determination for the position; recruit for the position through prescribed recruitment; and then complete an online application that attests that there are no willing, available, and minimally qualified U.S. workers for the job opportunity. This process takes time. Currently, prevailing wage determinations are taking more than six months to obtain. The recruitment process usually takes two to five months, depending on different factors, and has advertising and HR burdens. The application process has taken more than six months to receive initial adjudication this year. The application may also receive an audit, requiring presentation of all recruitment materials. The process works and is a good one when there is a shortage of workers and substantial need for the professional. The process takes time though and requires an employer sponsor.
An EB-2 National Interest waiver requires the petitioner to show (1) the work has substantial merit and national importance, (2) the applicant is well-positioned to advance the endeavor; and (3) and that on the balance, the waiver is beneficial to the U.S. The authoritative case on this balancing test is Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which has been adopted by USCIS for all adjudications. The waiver is available to persons with master’s degrees or higher, for positions that require a master’s degree or higher. A person with a bachelor’s degree plus five years of experience may be deemed equivalent to a master’s degree. The EB-2 also will work for persons with “Exceptional ability,” demonstrating at least three qualifications from a list set in the regulations (e.g. degree in area relating to exceptional ability; proof of 10 years of experience; license to practice profession; salary reflecting exceptional ability; membership in a professional association; recognition for achievements or contributions to the field).
In January 2022, the Biden Administration announced an initiative to encourage the immigration of STEM graduates to the United States. The plan announced over 20 new areas for extended stays in optional practical training in the STEM fields. USCIS updated its guidance for O-1 visas (“extraordinary ability” petitions) to reflect a broader view of STEM graduates. Concerning the National Interest Waiver, the announcement said:
With respect to immigration, DHS is issuing an update to its policy manual on how U.S. Citizenship and Immigration Services (USCIS), a DHS component, adjudicates national interest waivers for certain immigrants with exceptional abilities in their field of work.
- The Immigration and Nationality Act (INA) provides that an employer can file an immigrant petition for a person of exceptional ability or a member of the professions with an advanced degree. The INA provides that USCIS may waive a job offer requirement, allowing immigrants whose work is in the national interest to petition for themselves, without an employer.
- The USCIS policy update clarifies how the national interest waiver can be used for persons with advanced degrees in STEM fields and entrepreneurs, as well as the significance of letters from governmental and quasi-governmental entities. This update will promote efficient and effective benefit processing as USCIS reviews requests for national interest waivers. This effort is consistent with the Biden-Harris Administration’s priorities to restore faith in the legal immigration system.
Anecdotally, this updated guidance is starting to have a favorable effect on National Interest Waiver petitions. Each case is adjudicated on its own merits, of course. The petition may be worth looking at for those seeking employment-based paths. Notably, a National Interest Waiver petition can be filed while other petitions are also being pursued, such as labor certification-based petitions or other merits-based petitions.