Dr. William:

I visited your web site and saw other people are successful in obtaining approvals in National Interest Waiver category, even subsequent to the NYSDOT case. Does the requirement of NIW become more difficult these days for professions who hold advanced degrees? and do I have to get an interested government agency request for NIW application?

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Answer:

The Employment-Based Second Preference Category involves members of the professions who hold advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Although this category generally requires an employer and labor certification, the Attorney General may waive this requirement if the work by the foreign national is in the national interest.

In order to obtain a national interest waiver, one's work must benefit the U.S. in the national interest. Since the term "national interest" has not been defined in the statute, certain factors are taken into account in determining national interest. These factors include improvement of the U.S. economy; wages and working conditions for U.S. workers; education, health care, the environment, and housing. An interested government agency request is an added factor, which is given considerable weight by the USCIS, but it is not required.

As a result of a case known as New York State Department of Transportation (NYSDOT), it is necessary to demonstrate (1) whether the beneficiary will be working in an area of "substantial intrinsic merit," (2) whether the proposed benefit is national in scope, and (3) whether the significant benefit derived from the foreign national's participation in the national interest field considerably outweighs the national interest in using the labor certification process.