EB2 National-Interest Waiver Petition Should Show Past Impact

1223513_us_flag_1.jpgThe EB2 employment-based second preference immigration visa requires a labor certification and job offer. There is an exception to these requirements if it can be established that granting a visa is in the national interest of the United States. This is the national interest waiver. The criteria are a three-part test established by case law:

  1. The foreign national’s work must be in an area of substantial and intrinsic merit;
  2. It must be established that the foreign national’s benefit will be national in scope;
  3. The foreign national must benefit the US to a substantially greater degree than those with equivalent minimum qualifications;


The USCIS will consider 14 criteria in making the determination whether to grant a national interest waiver if the foreign national’s work will achieve one or more of the following:

  1. Improve the US economy;
  2. improve US working conditions and wages
  3. Improve training and education programs for under qualified workers and for US children;
  4. Improve healthcare;
  5. Make available more affordable housing for US residents who are poorer and either young or old;
  6. Improve the US environment and use natural resources more productively;
  7. An interested US government agency has requested the foreign national;
  8. Improve the US economy;
  9. improve US working conditions and wages
  10. Improve training and education programs for under qualified workers and for US children;
  11. Improve healthcare;
  12. Make available more affordable housing for US residents who are poorer and either young or old;
  13. Improve the US environment and use natural resources more productively;
  14. An interested US government agency has requested the foreign national.

A petition requesting a national interest waiver will be denied when the petitioner establishes only the importance of the beneficiary’s occupation. It is also imperative to establish that a beneficiary plays a significant role in achieving an accomplishment in the US national interest to a greater extent than would US workers with the same qualifications. This is because the benefit of the foreign national’s skill or background must outweigh the inherent national interest of the labor certification process in protecting US workers.

The measure of impact required to establish national interests is less than “major significance,” but instead is “some impact on the field as a whole.” The key to accomplishing this is to establish the beneficiary’s past impact in the field that distinguishes the beneficiary from others. It would be a mistake to solely establish future impact on the life it is connected to past impact. In order to do this petition should provide independent evidence establishing some amount of past impact within his or her field that distinguishes the foreign national from others.