Obtaining Permanent Resident Status Through the National Interest Waiver

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Individuals who have a U.S. masters degree or its foreign equivalent qualify under the Employment Based 2nd Preference provided they have a job offer that normally requires such a level a academic accomplishment. Also, aliens of “exceptional ability” (presumably a lower standard than “extraordinary ability” described above) in the sciences, arts, or business may also qualify for the Employment Based 2nd Preference. In order to qualify without a formal masters degree the petition should be accompanied by at least three of the following types of documentation:

1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
2. Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
5. Evidence of membership in professional associations; or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

However, the applicant may also show comparable evidence to establish eligibility.

Usually, in order for INS to approve a petition for the Employment Based 2nd Preference a labor certification requirement must first be obtained from the Department of Labor. This can be a very time consuming process. However, a limited exception exists if the entry of the foreign worker into the U.S. would be in the “national interest”.

The courts have enumerated some of the following factors that the INS should consider in determining if the alien’s entry to the U.S. would be in “the national interest”:

1. improve the U.S. economy?,
2. improve the wages and working conditions of U.S. workers?,
3. improve the education and training programs for U.S. children and under- qualified workers?,
4. improve health care,
5. provide more affordable housing for young and/or older poorer U.S. residents?,
6. improve the environment and make more productive use of natural resources?, or
7. Request of a U.S. Government agency

Recent administrative decisions have restricted eligibility somewhat and require that the alien’s abilities be essential to furthering the “national interest” and the “national interest” be in fact a benefit to the entire country and not just a region or locality.