How to Apply
Within the Second Employment Based Preference Category (EB-2) is a sub category called the "National Interest Waiver." The difference between the main category and its sub-category is the JOB OFFER and LABOR CERTIFICATION requirement present in the main EB-2. These requirements may be WAIVED in the NATIONAL INTEREST if the petitioner can show that his skills will substantially benefit the U.S.
petitioning process is largely the same as the EB-2 except for two key
certification may be waived; and
particular job offer will be required, although the petitioner
must show a field in which he/she intends to work;
apply for the exemption, the petitioner must submit the I-140,
along with a Form ETA 750B, Statement of Qualifications of
Alien, in duplicate; and
to support the claim that such exemption would be in the
national interest. Such evidence includes:
- letters from experts familiar with Petitioners work
- educational credentials
- published works
- awards or other recognition for achievements in the field
- memberships in exclusive professional associations.
INTEREST - There is no set definition of the term National Interest.
The INS instead applies the term to each case on an individual case-by-case
basis. The main case, Matter of [name not provided], EAC 92-091-50126
(AAU July 21, 1992), known as the "Mississippi Phosphate" case,
that has provided guidance on the issue was decided in 1992. In that
case the court set out the following factors as relevant to granting
a National Interest Waiver:
- improving the United States economy;
- improving wages and working conditions of U.S. workers;
- improving education and training programs for U.S. children and other qualified workers;
- improving health care;
- providing more affordable housing for young and/or older, poorer U.S. residents;
- improving the U.S. environment and making more productive use of natural resources; or
- involving a request from an interested government agency.
EXPERIENCE AND TRAINING IN THE FIELD - The alien must have
two years of full-time experience in the field;
NEED FOR SERVICE - The request for waiver may not be based
purely on a local labor shortage;
A SIGNIFICANT ROLE" - The Petitioner will work on an
undertaking which will "substantially benefit prospectively
the United States;" and the Petitioner will "play
a significant role" in the undertaking.
- BETTER THAN U.S. WORKER - The Petitioner must show that he/she will "serve the national interest to a substantially greater degree based on the INS appraisal of his or her record of achievement than would an available U.S. worker having the same minimum qualifications."
C. ACCEPTABLE EVIDENCE:
VALUE OF SERVICES - Petitioner must show that the Petitioner
seeks employment in an area of substantial intrinsic merit
to the U.S. The Petitioner must show that his/her work will
improve an area such as the economy, education, heath care,
housing, or the environment of the United States.
IN SCOPE - It must be shown that the proposed benefit will
be national in scope.
INTEREST - The petitioner must persuasively demonstrate that
the national interest would be adversely affected if a labor
certification were required for the alien.
- PAST ACCOMPLISHMENTS - The Petitioner must document a record of past accomplishments from which it can be concluded that he or she will serve the national interest to a greater extent than other persons with the same level of education, training and/or experience.
Depending on whether the employer follows the standard labor certification procedure or pursues reduction in recruitment expedited procedures, the labor certification alone can take more than one year. Following the labor certification, the prospective immigrant must still file the I-140 and I-485 in the proper order which can also take several months.
You should carefully examine whether you are qualified for any of the following categories for permanent residence through employment: Persons of Extraordinary Ability, Outstanding Professors and Researchers, Multinational Managers and Executives, Religious Workers, Blanket Labor Certifications or Reductions in Recruitment through the Labor Department.
You should also explore other immigrant options including petitions from close relatives who are U.S. citizens or permanent residents, green cards through investments, and the visa lottery program.
An international beneficiary who is offered a job by a U.S. employer may enter the U.S. for a temporary time of specified duration to fill the offered position. The employment must be a one-time need based upon low U.S. worker availability, seasonal, or cyclical needs.
Petitioner must prove to the satisfaction of the United States Consul official that:
COMPANY IS OFFERING EMPLOMENT - The employer must be offering
a position that is temporary and based on unusual need;
OF EMPLOYMENT MUST HAVE SPECIFIC ENDING DATE - The offered
position must be an isolated occurrence that has a specific
foreseen ending date. The position may not be a consistently
vacant position, but the need for the Beneficiary must arise
due to seasonal, cyclical, or tight labor market circumstances;
- TEMPORARY LABOR CERTIFICATION - The Petitioner must obtain a temporary labor certification certifying that no U.S workers will be adversely affected by the employment of the international Beneficiary. Further, the Beneficiary must be paid a wage equal to or exceeding a minimum prevailing wage for workers in the same position set by the state where Beneficiary shall work.
The Petitioner must first obtain a Temporary Labor Certification (TLC) from the USDOL. Upon receiving the TLC, the Petitioner may forward the petition with attached TLC to the INS Regional Service Center with jurisdiction over the Beneficiary's proposed place of employment.
temporary Labor Certification from U.S. Department of Labor certifying
that no U.S. workers are available to fill the offered position, and
that no U.S. workers will be adversely affected by the employment
of the international Beneficiary;
that job offered is for a short specified duration with date
certain for ending date;
that beneficiary has the job qualifications necessary to
fill the offered position, that is, training, education,
or letters of reference;
- Job offer letter describing position, temporary need of employee, and terms and conditions of employment.
Once approved, an H-2B Visa is good for the length of the TLC for a maximum of one year. Renewals for an H-2B visa may be extended for a maximum of three years in one-year increments. Upon reaching completion of the maximum stay a Beneficiary must depart the U.S. for at least six months.
Depending on the backlog at the INS Service center which receives your petition, the petition should take between 30 and 60 days to approve or deny.