EB-2.

National Interest Waivers

This is a self-sponsored, immigrant petition and waives the requirement of a job offer (nothing to do with the 2-year requirement of J-1s).

There are two types of National Interest Waivers:

• One specific to physicians engaging in clinical practice in medically underserved areas.
• One that is based on the applicant’s own credentials. The latter goes through the Dhanasar test, and requires the applicant to have at least an advanced degree (Master’s or higher) or have exceptional ability, which is shown by satisfying certain criteria.

The Dhanasar test must satisfy the following three parts:

• The applicant will have an endeavor that has both substantial merit and is of national importance
• The applicant is well-positioned to advance the endeavor (heavy emphasis on one’s credentials and abilities)
• On balance, it will benefit the nation to waive the requirements of a job offer (and thus the test of the labor market required for the labor certification/PERM) for the applicant because of the benefits he is able to provide the nation.

Like the EB-1, given the very subjective nature of the review process, it is important to make a great impression on the reviewing USCIS officer via strong letters of support and the persuasive presentation of the supporting evidence. Having an experienced attorney working closely with the applicant to properly highlight the applicant’s abilities is critical to the submission of a strong petition.

For those who do not have an advanced degree and must also show exceptional ability, in addition to satisfying the Dhanasar test, the applicants must present three of the following:

• An official academic record showing a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning related to the area claiming exceptional ability in.
• Letters establishing at least 10 years of full-time experience in an occupation related to the exceptional ability.
• A license to practice profession or certification in profession or occupation.
• Material establishing a salary or other remuneration for services that is probative of exceptional ability.
• Material showing recognition of achievements in the industry by others
• Material showing membership in professional associations
• Any other material that is probative in establishing exceptional ability.

Other comparable evidence of eligibility is also acceptable.

Physician National Interest Waiver through commitment to five (5) years of service in a medically underserved or health professional shortage area.

• This type of application can be petitioned by an employer or can be self-sponsored, but does require a 5 – year contract to practice clinically in a medically underserved or health professional shortage area or a Veterans Affairs facility. The application requires support from the specific state’s department of health or the federal agency acknowledging that the physicians work will be in the national interest. Unlike the Dhanasar NIW, this type of application is not as subjective in adjudication, and simply requires the applicant to document the 5-year contract, support from the state or federal agency, and credentials.

Few interesting and sometimes overlooked facts of the physicians NIW application:

• The applicant, if the priority dates are current, can file the adjustment of status (I-485, I-765/ EAD and I-131/ Advanced parole) at the same time as the initial NIW application, and does not need to first satisfy the 5 years.
• The 5 years of service does not have to be completed consecutively. One may work in non-underserved areas and then resume the 5 years at a later time (certain status issues should be resolved to ensure ability to continue working).
• Those subject to the two-year home residency requirement of the J-1 can file for the adjustment of status

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Radu C. Vasilescu