The Alien Applicant Should Meet the Three-Prong Test for EB2 National Interest Waiver Petition



As the USCIS adopted AAO decision for EB2 National Interest Waiver petition, the standard for the National Interest Waiver can be broken down into 3 prongs:


1) The alien must seek employment in an area of substantial intrinsic merit: This prong for a EB2 National Interest Waiver application is applicable to many areas. To demonstrate that the alien applicant’s work is important, the petitioner should be able to clearly explain the benefits of the alien applicant's work. Most scientific and engineering disciplines can directly benefit society and people's life, and the reference letters and other supporting evidence should indicate the ways in which the alien applicant’s work benefits the society. In the case of New York State Department of Transportation's NIW petition, the USCIS indicated that the construction of bridges inside New York State is in an area with substantial intrinsic merit.


2) The proposed benefit must be national in scope: After the petitioner showing that the alien applicant works in an area of substantial intrinsic merit, the petitioner needs to prove that the alien's work can benefit the nation in scope. As in the case of New York State Department of Transportation's NIW petition, the alien applicant can involve in projects that affect the nation as a whole indirectly, such as working on roads and bridges in a specific area (inside New York State only). According to USCIS, while the alien's work does not directly impact the nation as a whole, it represents technological progress that may be used in other parts of the United States. Also, this prong requires the benefits with national importance should not be contrary to any part of the nation, or the benefit for one area should not deprive the another area. Therefore, the petitioner can argue that the alien applicant's proposed benefits are national in scope, if an area of work has substantial intrinsic merit, and also has no contrary to the interests of other parts of the United States.


3) The national interest would be adversely affected if a labor certification were required for the alien: This is the difficult requirement to demonstrate in an EB2 National Interest Waiver petition, and the petitioner needs to prove that the alien applicant is capable of performing at a substantially higher level than a minimally qualified U.S. worker. This is a subjective standard that requires skilful argument and appropriately worded recommendation letters and reference letters.