National Interest Waiver
Aliens in the second preference employment-based immigration category are subject to labor certification requirements. However, the petitioner may seek a ?National Interest Waiver? to bypass the onerous labor certification process. The ?national Interest? test is a very demanding test. The petitioner needs to prove that the alien is someone with exceptional ability and that the alien?s employment in the United States would greatly benefit the nation.
There is a three-part test for to decide whether ?the alien?s past record justifies projections of future benefits to the national interest? (Matter of New York States Department of Transportation, 22 I&N Dec. 215).?
The first factor is where the alien works in an area of ?substantial intrinsic merit.? This has been defined as (1) improving the U.S. economy, (2) improving wages and working conditions for U.S. workers, (3) improving education and training programs for U.S. children and underqualified workers, (4) improving health care, (5) providing more affordable housing, (6) improving the U.S. environment and making more productive use of national resources, or (7) involving a request from a U.S. government agency.
The second factor requires that the alien?s proposed activity is ?national in scope.? The petitioner needs to submit evidence that the benefit is more than to an area of the country. The alien?s work should have a national impact of bettering the nation.
The third factor is whether the ?alien will serve the national interest to a greater degree than would an available U.S. worker with similar minimum qualifications.? A labor shortage is not enough since that is the purpose of a labor certification. The petitioner must provide evidence that the alien has had a ?track record of success? with ?some degree of influence on the field.?
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