For most individuals, labor certification will be the quickest and most certain route to permanent residency; however, in some cases it may be advantageous to file in another manner. However, in recent years, these cases have become exceedingly difficult in terms of the evidence required from the USCIS.
An eligible EB-2 applicant may apply for permanent residency directly to the USCIS without having to receive a labor certification from the Department of Labor (DOL) if they can show his work is in an area of national interest.
EB-2/National Interest Waiver
The term “national interest” is not defined in the law; however, the United States Citizenship and Immigration Services (USCIS) has suggested that the following seven factors could be taken into consideration for an NIW petition:
1. improving the U.S. economy;
2. improving wages and working conditions of U.S. workers;
3. improving education and training programs for U.S. children and under-qualified workers;
4. improving health care;
5. providing more affordable housing for young and/or older, poorer U.S. residents;
6. improving the environment of the U.S. and making more productive use of natural resources; or
7. a request from an interested U.S. government agency or improving international cultural understanding.
If applicable, the petitioner should show that the beneficiary will be working to improve one of the seven listed factors. In addition, the beneficiary must show evidence of at least 3 of the following:
a. an advanced degree (Master or above) related to the area of exceptional ability;
b. evidence in the form of reference letters from employers or experts that the applicant has at least two years experience in the area in which your work will benefit the United States;
c. a license to practice in the field;
d. evidence that the applicant has commanded a salary higher than others in the field;
e. membership in professional associations (should show that the professional association limits membership to those who have made significant contributions); and/or
f. recognition for significant contributions to the field. This is typically shown through letters from international experts attesting to the applicant’s contributions.
Please note the USCIS is increasingly requesting additional evidence to show that the applicant has had a greater impact than would a US worker with similar education and training. The USCIS will frequently requests evidence as to why a labor certification is NOT in the national interest and also frequently requests evidence that the applicant’s work has been heavily cited by other scientists (excluding self-citations).
Most individuals will chose labor certification over a National Interest Waiver in the current environment. However, the National Interest Waiver allows self-petitioning, meaning that the applicant is not required to have an employer sponsor the case. It also allows the applicant to change jobs much more easily during the permanent residency than other types of employment based permanent residency cases. For this reason, some individuals will want to consider this option.