For most employment-based cases, an applicant must have a job offer, and a labor certification must be filed showing that no US workers are available for the position. However, the labor certification process may be “waived” if the applicant possesses an advanced degree in a relevant field and can show that his work will benefit the “national interest” of the United States to such a degree that it overrides the need to protect U.S. workers with the labor certification process.
Further, for the National Interest Waiver classification, a foreign national may “self-petition” so no employer or job offer is needed. This makes the National Interest Waiver a very attractive prospect to self-employed people. An employer may also sponsor a foreign national under this category.
The criteria for the National Interest Waiver have recently been changed following a precedent decision, Matter of Dhanasar. The new criteria are less rigid and also clearer than the previous ones and greatly expand the pool of people who can benefit from this classification. The new criteria state that an applicant qualifies for this Green Card if:
- (a) The proposed endeavor has both substantial merit and national importance;
- (b) The applicant is well positioned to advance the proposed endeavor;
- (c) On balance, it would be beneficial to the United States to waive the labor certification process.
This decision has some important changes from the earlier criteria. Previously, applicants had to show their work was “national” in the geographic sense of the word, whereas now the criterion has shifted to allow the applicant to explain that the benefit of his or her work will be in the national interest even if the work is being done in one geographic location. As long as it will be of national (and even international) benefit, it will qualify.
The applicant’s background and past record of accomplishments will still be taken into consideration in weighing whether his proposed endeavor will be of future benefit to the national interest. The applicant still has to show that he will serve the national interest to a substantially greater degree than would a U.S. worker with the same minimum qualifications.
However, the decision specifically mentions the risk-factor that all entrepreneur initiatives encounter as well as stating that endeavors in the areas of “business, entrepreneurialism, science, technology, culture, health or education” may all qualify as endeavors of substantial merit and national importance.
This is altogether a more flexible interpretation of the National Interest Waiver regulation which we feel will be of benefit to many clients.
Further, applicants who demonstrate exceptional ability in the sciences, arts or business, and whose work will substantially benefit the US economy, culture, education or welfare, may also qualify for the National Interest Waiver. Those applying based on exceptional ability must meet the above three criteria and three of the following:
- Degree relating to area of exceptional ability;
- Letter from current or former employer showing at least 10 years of experience;
- License to practice profession;
- A salary demonstrating exceptional ability;
- Membership in a professional association;
- Recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organization.
Our most recent National Interest Waiver approvals were for a Canadian baritone who held an advanced music degree and a Japanese classical artist of exceptional ability. Both were self-employed artists working on multiple projects who self-petitioned for the Green Card.
If you think you may qualify for the National Interest Waiver, please email your CV or résumé to firstname.lastname@example.org.