The Immigration and Nationality Act ("INA") created a category of immigrants who wish to immigrate to the United States based on their holding advanced degrees or their equivalent, and individuals of exceptional ability in the arts, sciences, or business. This category is known as the second employment-based, or "EB-2", immigrant category.

In order to immigrate to the United States, an EB-2 immigrant typically must have a job offer and an approved Labor Certification application. However, foreign nationals who fall within this category may have the job offer and labor certification requirements waived by the Immigration and Naturalization Service ("INS") if the foreign national's presence in the United States is considered to be in the "national interest." An immigrant in this situation is seeking a "national interest waiver" to the labor certification requirement.

Although an foreign national may petition for himself when seeking a national interest waiver, the INS is more likely to grant such a waiver when the foreign national's services are being sought by an employer within the United States.

In order to qualify for a national interest waiver, a foreign national must show a number of things. First, the foreign national must be an "advanced degreed professional". such a professional must have an advanced degree or its equivalent. An advanced degree is considered to be a U.S. master's degree or an equivalent foreign degree. If a foreign national does not possess an advanced degree, (s)he may still be eligible for the EB-2 category if (s)he is an "alien of exceptional ability" in the arts, science or business.

In addition to being a member of one of the above two immigrant categories, the foreign national must prove that the contributions which the foreign national is capable of making to the American community are within the national interest. The foreign national must contribute on a national level, and not just to a specific community. The following are examples of grounds which could be the basis for the granting of a national interest waiver:

• Improving the U.S. economy
• Improving the wages and working conditions of U.S. workers
• Improving education and training programs for U.S. children and under-qualified workers
• Improving health care in the U.S.
• Providing more affordable housing for young and/or older, poorer U.S. residents
• Improving the environment of the United States and making more productive use of natural resources
• A request from an interested U.S. Government Agency
  

A recent court decision, In Re New York State Department of Transportation ("NYDOT"), clarified the evidence needed to show that a foreign national qualifies for a national interest waiver. Under the new standards, a foreign national seeking a national interest waiver must demonstrate that (s)he:

• Wishes to work in an area of "substantial intrinsic merit". Work will most likely be considered in an area of "substantial intrinsic merit" if it meets one of the waiver grounds set forth above.
• Will provide a benefit that "will be national in scope". An activity may be limited to a particular geographic area, yet still be "national in scope". However, it cannot adversely impact another region. For example, in NYDOT, an engineer's work to repair highway bridges in New York was determined to be "national in scope" because such bridges are connected to the national transportation system, and would not adversely imact any other part of the country.
• Will "serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications". This is the most difficult criteria to meet since it requires a comparison of the benefits received from the foreign national's work versus the harms to the U.S. workforce, and presumes that a U.S. worker will lose a job opportunity if the foreign national is permitted to immigrate.

While national interest waivers are still being granted under the new standards, it has become much more difficult and oftentimes (though not always) requires an appeal of the INS's initial denial. For examples of evidence relied upon to qualify a foreign national for a national interest waiver before the NYDOT ruling, click here.

An EB-2 immigrant can file for a national interest waiver using the Immigration and Naturalization Service's ("INS's") Form I-140, along with two original U.S. Department of Labor Form ETA-750B to the INS Service Center that has jurisdiction over the place where the foreign national will work. the foreign national can include his/her spouse and all dependents under 21 years old on his/her I-140.