National Interest Waivers

Aliens who are eligible under the employment based preference #2 Immigrant category ("EB-2") may seek a national interest waiver ("NIW") of the normal labor certification requirement. This is true even though the job-position offered does not require an advanced degree, so long as the alien possesses an advanced degree. The Immigration & Nationality Act does not set forth criteria or define what is "in the national interest". USCIS regulations merely state "The Director may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if exemption would be in the national interest." USCIS administrative decisions mention various factors they may consider, including but not limited to, improving the U.S.: economy; wages and working conditions; environment education and training programs for children; health care; etc.

A national interest waiver enables qualified aliens and their employers to avoid the uncertainties involved in the complex and time-consuming "labor certification" process which is administered by the U. S. Department of Labor ("DOL"). This process requires every employer to adequately demonstrate to the DOL, through a prescribed objective recruitment process, that there is not a qualified U. S. worker currently available for the specific job-position. Only if and when this process is successfully completed and documented, will the DOL "certify" the job-position to BCIS. In the event of such certification, a petition based thereon and the alien's application for a "green card" may be filed for concurrent processing with BCIS, assuming an immigrant visa number is immediately available. ( Such availability is usually based upon the priority date established when the labor certification was initially filed).

The USCIS administrative decision (Matter of New York State Department of Transportation), eliminated NIW's for most aliens who were previously eligible, such as physicians practicing in MUA-HPSA areas, VA-ARC facilities, researchers (unless s/he is "regarded as one of the top research scientists in the U.S.,") etc. Congress passed and act in November, 1999, which made special provisions for Physicians working in certain shortage areas and VA facilities.

NIW applicants must currently satisfy the following standards:

1. The alien has or will individually contribute to their specialty field "to such an extent to establish his or her work is in the national interest." (In the past, employment in an occupation which served the national interest was often considered sufficient).
2. The proposed benefit of the alien's employment in the United States must be "national in scope" and the alien's "work has affected or will affect (their field) on a national level."
3. "[T]he national interest would be adversely affected if a labor certification were required." (In other words, the national benefit of the alien's employment must outweigh the national benefit inherent in the labor certification process).

The end result of this revised NIW policy is, that most aliens who could previously qualify for a NIW, will now have to obtain a labor certification before they are eligible to apply for a "green card". This certification process adds many months; and in some cases years, to the normal lengthy period USCIS requires to complete non-labor certification "green-card" cases.

Should the initial application for a labor certification be denied or substantially delayed by DOL processing backlogs, an alien's six year maximum eligibility for H-1B status could be exhausted prior to their attaining eligibility to apply for the "green card." This could prevent their obtaining interim status and alternative USCIS employment authorization from the USCIS while their "green card" application is being processed. This danger is particularly acute for physicians who must complete three years of service in H-1B status to satisfy the minimal requirements of the new conditional J-1 [INA Sec. 212(e)] physician waivers.

Prudent individuals will consider having applications for labor certifications initiated on their behalf as soon as their H-1B status is approved. Failure to do so could have severe consequences.