Exceptional Ability Eligibility and National Interest Waiver
A national interest waiver is a method of obtaining a Green Card without having an employer sponsor you, if the work you will be doing in the United States will benefit the economy, education system, health, or some other aspect of society. The waiver is a subcategory of the EB-2 employment-based category for obtaining permanent residence. A national interest waiver is obtained if a noncitizen wants to have work authorization in the United States without an offer of employment. The United States Citizenship and Immigration Services (USCIS) grants national interest waivers to individuals who are exceptionally talented in their field and their entry to the United States would be in the country's “national interest”. For example, these individuals may include physicians, researchers in STEM, or professors who have been widely recognized by awards or publications.
When applying for a national interest waiver, you do not need to find an employment offer or have an employer sponsor your application. You can self-petition for the waiver if you do not have a job offer, or if you would like to have flexibility of employment in the future without risking your immigration status. You also do not have to go through the PERM, or labor certification, process as is usually required by EB-2 and EB-3 categories.
To be eligible for a national interest waiver, you must first qualify for the EB-2 category, by having an advanced degree or exceptional ability. If you choose to apply based on your advanced degree, you will mostly likely still have to show that you are highly skilled in your field as well. This is because to obtain a national interest waiver, you must show that your entry and employment in the United States will be a great asset to the country.
An individual may qualify for the exceptional ability visa preference classification if they meet the following criteria:
They possess exceptional ability in the fields of sciences, arts, or business. Their future services will bring substantial benefits to the national economy, cultural or educational interests, or welfare of the United States. An employer in the United States seeks their services in one of the aforementioned fields. Exceptional ability is defined as a level of expertise significantly higher than what is typically encountered in the sciences, arts, or business. It is important to note that this standard is less stringent than the standard for extraordinary ability classification. Evaluating Evidence To assess eligibility for exceptional ability classification, USCIS officers follow a two-step analysis of the evidence submitted with the petition.
Step 1: Reviewing Regulatory Criteria In the initial step, officers determine whether the evidence meets the specific regulatory criteria. Each piece of evidence is evaluated to determine if it objectively fulfills the parameters set forth in the regulations.
Step 2: Final Merits Determination During the final merits determination, officers consider all the evidence as a whole to evaluate the petition's overall merits. Given the high level of expertise required for this immigrant classification, the officer assesses whether the beneficiary has demonstrated a degree of expertise significantly above what is ordinarily encountered in the sciences, arts, or business.
Assessing Regulatory Criteria During the first step of the review, officers verify whether the evidence submitted fulfills at least three of the following six regulatory criteria:
1. Official academic records demonstrating relevant degrees, diplomas, certificates, or similar awards.
2. Letters from current or former employers confirming at least 10 years of full-time experience in the sought-after occupation. Professional license or certification.
3. Evidence of commanding a salary or remuneration that reflects exceptional ability relative to others in the field.
4. Membership in professional associations. Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
In some cases, evidence relevant to one criterion may also apply to other criteria. If the listed criteria do not readily apply to the beneficiary's occupation, comparable evidence may be submitted to establish eligibility. When considering comparable evidence, officers evaluate its applicability to the beneficiary's occupation and whether it truly aligns with the regulatory standards.
It is important to note that objectively meeting the regulatory criteria does not automatically establish the beneficiary's qualification for exceptional ability classification. The evaluation of the beneficiary's membership in professional associations, for example, should consider whether it indicates expertise significantly above the norm. This assessment is part of the final merits determination.
Final Merits Determination Meeting the minimum requirement of providing at least three types of initial evidence does not, on its own, prove that the beneficiary meets the requirements for exceptional ability classification. Officers must also assess the quality of the evidence during the final merits determination. The officer must determine, based on a preponderance of the evidence, whether the petitioner has demonstrated that the beneficiary possesses a level of expertise significantly higher than what is ordinarily encountered in the sciences, arts, or business. When requesting additional evidence or drafting a denial, officers should provide specific reasons as to why the petitioner, by a preponderance of the evidence, has or has not demonstrated the beneficiary's eligibility for exceptional ability classification.
Possessing a degree, diploma, certificate, or similar award from an educational institution alone is not sufficient evidence of exceptional ability. The petitioner must establish that the beneficiary's qualifications surpass those of others in the field. Additionally, formal recognition in the form of contemporaneous certificates and documentation may hold more weight than letters prepared for the petition. In case an officer believes that the facts stated in the petition are untrue, they may deny the petition and provide written reasons for the denial
