EB-2: National Interest Waiver
INA Sec. 203(b)(2), 8 CFR Sec. 204.5(k)(4)(ii)
The Second Preference Immigration Petition (EB-2) is an employment-based petition for permanent residence for an alien who is a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business.
Generally, the EB-2 category requires an offer of employment and an accompanying labor certification. 8 C.F.R. Section 204.5 (k)(4)(i).
However, the requirement of a job offer, and the labor certification, in this category may be waived for if exemption would be in the national interest. Section 204.5(k)(4)(ii). See also INA Section 203(b)(2)(B).
“National Interest” is not defined by statute or regulation. Instead in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) the Administrative Appeals Office (AAO) issued a precedent decision for adjudicating national interest waiver petitions. Under the Dhanasar framework, after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of evidence:
- that the foreign national’s proposed endeavor has both substantial merit and national importance;
- that the foreign national is well positioned to advance the proposed endeavor; and
- that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.