The Second Preference employment-based immigrant category is comprised of:

• Professionals with Advanced Degrees, and

• Aliens of Exceptional Ability

Both subcategories require a job offer and labor certification unless the candidate qualifies for a national interest waiver.

National Interest Waivers:

Where  the candidate's work is found to be in the national interest, the USCIS may waive the general rule requiring a job offer and labor certification for both 2nd preference categories.

Candidates can self petition eliminating the need for sponsor by an employer.  In fact, it is usually not advisable for an employer to file a petition on behalf of the candidate.

Many scientists can qualify for this petition, and it is much easier for research scientists to qualify than for people in other fields.  Key players who have held distinguishable roles in critical, large, ongoing collaborative projects are often successful.

In order to qualify for a National Interest Waiver:

• The candidate must be a professional holding an advanced degree or be of exceptional ability; and,
   

• The work of the candidate must be in the National Interest.

As the labor certification process is designed to address labor shortages, shortage of labor is not enough to justify a waiver of the labor certification process. 

Standards for determining what is in the national interest have changed.  Determination of what is in the national interested is governed by a case titled In Re: New York Department of Transportation, Interim Decision (AAU) 3363, 1998.  This case held that in evaluating a candidate's prospective benefit: 

The USCIS must consider whether the candidate's "past record justifies projections of future benefits to the national interest" through a three-part test.

1. Whether the candidate seeks to work in an area of "substantial intrinsic merit"

2. Whether the benefit of the candidate's proposed activity will be "national in scope"  (benefit to more than a particular region of the country as well as little or no adverse impact on the interests of other regions of the country).

3. Whether the candidate "will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications"  (a track record of success with some degree of influence on the field as a whole including evidence from unbiased proponents and solid documentation of past success rather than expectation of future success).

By the third prong of the test, candidates for a 'national interest' waiver are required to meet an even more demanding standard than candidates asserting exceptional ability who need to their work is of prospective national benefit and expertise significantly above that ordinarily encountered in the field.

Unfortunately, the statutory authority to exercise flexibility has seemingly been exceeded by a  narrowed definition of national interest.  Eligibility has thus narrowed and the standard has become the equivalent to the extraordinary ability standard. Still, creative advocacy is invited as the USCIS has stated its commitment to "leave the application of this test as flexible as possible" and judging each case "on its own merits."

Attorney Tara Kennedy is skilled in providing creative advocacy.  Please call our office for answers to further questions or if you are interested in applying.