According to a case called “The Matter of Dhanasar”, USCIS may grant a National Interest Waiver of the labor certification process if the proposed endeavor has both a substantial merit and national importance. That is, if the foreign national is well positioned to advance the proposed endeavor and it would be beneficial to the United States to waive the job offer and labor certification requirements.
First, you must be eligible for the EB-2 “Exceptional Ability” green card, according to the USCIS definition. That means “a degree of expertise significantly above the ordinary encountered in sciences, arts, or business.”
You can establish eligibility by meeting three of the following criteria:
- A degree from a college or university or other institution of higher learning in your area of exceptional ability.
- Ten years of full-time experience.
- A license or certification to practice your profession or occupation.
- Evidence that you have commanded a high salary.
- Membership of a professional association.
- Recognition for your achievements – or significant contributions – in your industry as recognized by peers, government entities.
Scoring three of those six criteria is not particularly difficult, but it is not enough on its own. You also have to meet the three-pronged test of Dhanasar.
The first criterion is “substantial merit”: why does the beneficiary’s proposed endeavor have substantial merit, and what documentary evidence supports this? (See video for how we can help you meet this using different categories of evidence.)
The second is “national importance”. Immigration officers will consider the proposed impact of the endeavor. It is critical to draft a detailed description that proves the likely benefit to the United States, again with sufficient evidence, so this should ideally be done by an attorney with significant experience in this area.
Increasing employment or other economic benefits can be extremely helpful, particularly if targeting economically deprived areas. There are other types of positive benefits to the country, including culture and the arts. Your lawyer should be able to help you pinpoint these benefits.
The last prong is, is the foreign national well positioned to advance the proposed endeavor? This generally means that the beneficiary needs to be in a significant position within their organization. You must therefore be able to provide evidence that you have a strong standing in your field and be reasonably expected to continue your work successfully in the United States.
Immigration attorney Jon Velie breaks down the requirements and steps you need to take.