Second Preference, Exceptional Ability and the National Interest Waiver

Q: What is the Second Employment-Based Preference Category?

A: 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 case requires a job offer only in the Outstanding Professor or Researcher and Multinational Executive or Manager categories but not in the Extraordinary Ability category).

Q: What does "Exceptional Ability" mean and how is it demonstrated?

A: 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 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.

Q: What does a National Interest Waiver do exactly?

A: 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.

Q: When is a National Interest Waiver appropriate?

A: 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 means in practice was further defined in 1998, when U.S. Citizenship and Immigration Service's predecessor agency, INS, issued guidance. In deciding a National Interest Waiver case, the INS Associate Commissioner indicated that three criteria must be met:

• The foreign national seeks employment in an area of substantial intrinsic merit (the field of endeavor itself is beneficial, and the foreign national will continue in the field in the U.S. if the waiver is granted);
• The benefit will be national in scope, and will not merely benefit a locality or region; and
• The national interest of the U.S. would be adversely affected if a labor certification were required.

Since these criteria were set forth, it has become more difficult - though not impossible - to meet the National Interest standard. The third test - that the national interest would suffer if a labor certification was required - is particularly difficult to demonstrate in many cases.

Q: What types of fields of endeavor could be said to meet the Substantial Intrinsic Merit test?

A: There is no definitive list of fields, but certain benefits to the U.S. which were recognized even before the 1998 guidance are still 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.

Q: Is a National Interest Waiver specific to an employer?

A: 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.

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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.