The employment-based second preference (EB-2) category is for professionals who possess advanced degree or are of exceptional ability. This category is appropriate for workers in highly skilled occupations, such as physical therapists, doctors, lawyers, and researchers.
An employer who seeks to hire a foreign national must first obtain a labor certification from the US Department of Labor (DOL) to establish that there are no available US workers wiling and able to fill the position. This is a long and difficult process. However, the requirement to obtain the labor certification may be waived if the EB-2 worker can show that the waiver is in the national interest of the United States.
In 1998, a framework for evaluating national interest waiver petitions was established by the former Immigration and Naturalization Service (INS). The framework required that the petitioner showed: that the area of employment is of “substantial intrinsic merit”; that any proposed benefit from the individual’s endeavors was “national in scope”; and that the national interest would be adversely affected if a labor certification were required for the foreign national.
In a recent case, a new framework for adjudicating national interest waiver petitions was issued. The USCIS saw the need to create this new framework to avoid confusion and to simplify the requirements. The USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence: that the foreign national’s proposed endeavor has both substantial merit and national importance; that the foreign national is well positioned to advance the proposed endeavor; and that on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification. If these three elements are met, the USCIS may approve the national interest waiver as a matter of discretion.
The USCIS explained that substantial merit and national importance focuses on the endeavor that the foreign national seeks to undertake. It could be in the realm of business, entrepreneurship, science, technology, culture, health or education. National importance looks at the potential prospective impact and not at the geographic effect on the entire US. Hence, an endeavor that could employ US workers in a particular depressed area, can meet the national importance requirement.
As to the second requirement, the USCIS will look at different factors which include: the applicant’s education, skills, knowledge, and record of success in related or similar efforts; a plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. The applicant is not required to prove that his plan will succeed, but that he is well positioned to advance the proposed endeavor.
The third requirement seeks to balance the competing requirements of having the job offer, labor certification and the presence of qualified US workers, on the one hand, and the national benefits the US can obtain from the foreign national on the other. The USCIS may grant the national interest waiver when the foreign national’s contribution is sufficiently urgent to warrant waiving the labor certification process.