Employment Based National Interest Waivers

Both professionals with advanced degrees and people with exceptional ability may seek waivers of the job offer requirement if their immigration could be deemed in the "national interest." Waiver of the job offer means the applicant is exempt from obtaining a labor certification and does not need an employer in the United States to file a petition. Since the national interest waiver is filed by the applicant, and not by the employer, it is his or her sole property and remains valid regardless of the applicant's employment status.

The Immigration and Naturalization Service regulations do not define the term "national interest." The introduction to the employment-based immigrants regulations expressly say that the term "national interest" is flexible. In a number of AAU decisions, the INS has said that the following criteria may be used to determine national interest, but not all of the criteria need to be met:

  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 United States and making more productive use of natural resources; or
  7. Request from an interested U.S. Government Agency.

The more factors that an applicant may prove, the better are his/her chances of having the petition approved. One must also show that he/she will be working in the United States in the sciences, arts, professions or business. National Interest does not connote benefiting the nation as a whole, a benefit to a locality is sufficient.