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To fall under the Employment-Based Second Preference classification, the job being petitioned for must require at least an advanced degree – normally a Master’s Degree or the equivalent – or the foreign national can be demonstrated to possess “exceptional ability” in his or her field. An Employment-Based Second Preference case will normally – but not always – require a job offer (recall that an Employment-Based First Preference – EB-1 – case requires a job offer only in the Outstanding Professor or Researcher and Multinational Executive or Manager categories but not always in the Extraordinary Ability category).

Exceptional Ability refers to a degree of expertise significantly above what would be considered typical, and is accepted by USCIS to be a level of achievement somewhat less than the First Preference (EB-1) Extraordinary Ability standard. While the method of proving exceptional ability is similar to the method used to demonstrate extraordinary ability in that three elements out of a longer list must be exhibited, the criteria themselves are slightly easier to meet:

  • The foreign national has a degree relating to the area of exceptional ability;
  • Letters from current and former employers confirming that the foreign national has at least ten years of work experience in the field;
  • The foreign national has a license to practice his or her profession;
  • The foreign national has commanded a high salary for services rendered;
  • The foreign national is a member of a professional association in his or her field; or
  • The foreign national has received recognition for achievements and contributions of significance to the field by peers, government entities, or professional or business organizations.

The National Interest Waiver is a waiver of the requirement that labor certification be obtained before an immigrant visa is requested from Citizenship and Immigration Services. With approval of a National Interest Waiver, the employer can avoid the effort and delay that go into obtaining this certification from the U.S. Department of Labor.

The National Interest Waiver is possible, as mentioned above, only where the case would otherwise fit into the Second Employment-Based Preference Category. In addition, the work which the foreign national will perform must have a prospective benefit (have a high likelihood of future benefit) to the national interests in the U.S. which is significantly higher than that required of a typical foreign national seeking “exceptional” status. What this currently means in practice is defined by a December 27, 2016 Administrative Appeals Office decision, 26 I & N Dec. 884 (AAO 2016) online here. In deciding a National Interest Waiver case, three criteria must be met:

  • 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 United States to waive the requirements of a job offer and thus of a labor certification.

This is actually a big improvement to the old test which dated back to 1998. Under the old test, the first test here was divided into two separate inquiries: that the area of employment was “in an area of substantial intrinsic merit” and that the benefit “will be national in scope, and will not merely benefit a locality or region.” Here, the word “intrinsic” has been removed from the former first prong and the former second prong has been shortened to “national importance” – both changes make the test a little easier to interpret and less subject the the whims of a particular USCIS officer.

The second part of this test is completely new, but not hard to meet: in most cases the foreign national would have needed to be “well positioned to advance the proposed endeavor” in order to meet the “exceptional ability” tests anyway. It would always have been rare to file this type of case for someone not well qualified to do the job. Therefore, this new requirement is unlikely to make it tougher to meet the requirements for a national interest waiver.

The biggest change is in the third prong of the test: where before we had to prove that “The national interest of the U.S. would be adversely affected if a labor certification were required,” now we need only prove that “On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.”

The old test was normally the toughest part to meet – it was hard to prove that the national interests would be adversely affected and usually meant arguing that there was some urgency to getting the foreign national in a position to do the job AND that we would want someone more qualified than a “minimally qualified US worker” doing the job (the standard for Labor Certification). Now, though, we only need to prove that “in balance” it would be better to waive labor certification.

There is no definitive list of fields, but certain benefits to the U.S. which were recognized even before the 1998 guidance would presumably still be considered by USCIS in making a substantial intrinsic merit determination, such as:

  • Improving the U.S. economy;
  • Improving wages and working condition of U.S. workers;
  • Improving education for U.S. children or workers;
  • Improving health care;
  • Providing more affordable housing;
  • Improving the U.S. environment and making better use of natural resources; or
  • Any benefit sufficiently significant to a U.S. government agency to be recognized by a request from that agency that the national interest waiver be granted.

Only if the Waiver request was based on work the foreign national would be performing with that specific employer and that employer signed the petition. Like an Extraordinary Ability case, a National Interest Waiver may be self-petitioned by the foreign national based on their own contribution to the industry. Such a case, or even an employer-petitioned case based on the foreign national’s own contributions rather than on a specific job, could be transferred to a new employer.

Actually, meeting both the Exceptional Ability and the National Interest Waiver tests, taken together, are only viewed as a first step. There is an additional inquiry by USCIS after they determine that at least three of the Exceptional Ability requirements and ALL of the National Interest Waiver requirements have been met. This is the result of a case known as “Kazarian” – formally, Kazarian v. USCIS, 2010 WL 725317 (9th Cir. 2010).

Mr. Kazarian’s Extraordinary Ability case (not, notice, an Exceptional Ability/National Interest Waiver case) had been denied although on paper he met at least three of the requirements. USCIS essentially said that although he technically did, his accomplishments weren’t really all that impressive and that congress wanted this category to be for the truly impressive when they created the law that permitted it.

The Kazarian decision instructed that USCIS was to examine whether at least three of the criteria were met or not, without determining how impressive these accomplishments actually were. However, the court referenced the concept of a “final merits determination” where the quality of a subject individual’s standing would be analyzed. USCIS then interpreted this as a requirement that they needed, as part of adjudicating not only Extraordinary Ability Petitions but also Outstanding Professor or Researcher petitions and Exceptional Ability/National Interest Waiver petitions, to perform a formal “final merits determination.”

So, a petition submitted since the Kazarian ruling now needs to address both whether the individual meets at least three of the core criteria, and whether the individual has received sustained national or international acclaim/is one of that small percentage who has risen to the very top of the field of endeavor.