Pursuant to INA § 203(b)(2)(A), visas shall be made available "to qualified immigrants . . . who are members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions or business are sought by an employer in the United States."

Advanced Degree Professionals:

“Advanced degree” is defined as, “any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree.” Please note that if a Ph.D. is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.

Foreign Nationals of Exceptional Ability:

In order to demonstrate “exceptional ability” in the sciences, arts or business, the foreign national must demonstrate that s/he has achieved a degree of expertise significantly above that ordinarily encountered in the field of expertise. Toward this end, the petition must be accompanied by evidence of at least three of the following:

1. Evidence of a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;
2. Evidence in the form of letters from current or former employers showing that the foreign national has at least ten years of full time experience in the occupation for which he or she is being sought;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the alien has commanded a salary or other remuneration for services, which demonstrates exceptional ability;
5. Evidence of membership in professional associations; or
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities or professional or business organizations.

If the above standards do not readily apply to the beneficiary’s occupation, the applicant may submit comparable evidence to establish eligibility.

National Interest Waiver of the Job Offer Requirement

The applicant may waive the requirement that he or she have an offer of permanent employment to work in his or her field of endeavor if it can be shown that exemption from the job offer requirement (and thus, the filing of a labor certification application) is in the national interest.

In its precedent setting case, In re: New York State Dept. of Transportation, EAC-96-063-51031 (AAU August 7, 1998) (hereinafter referred to as “NYSDOT”), the CIS’ Administrative Appeals Unit, set forth the standard for adjudicating a request for a national interest waiver. To succeed, the applicant must establish:

1. He or she seeks to work in an area of substantial intrinsic merit;
2. The applicant’s work has a benefit which will be national in scope; and
3. The national interest would be adversely affected if a labor certification were required. Stated differently, the applicant must establish that he or she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications required for the position.

Extensive documentation proving the above criteria must be submitted to the CIS in order to maximize the chances for a successful application. The following is a broad list including the type of documentation which may be presented to demonstrate eligibility for a National Interest Waiver:

1. Documentation evidencing work experience and qualifications:
   • Resume.
   • Copy of degrees and transcripts.
   • Copy of degree evaluation (if appropriate).
   • Copies of publications, abstracts, citations by third parties, etc.
   • Letters of reference from peers, colleagues and experts in the particular field.
2. Evidence that the applicant’s work is in the "National Interest:"
   • Articles from periodicals or trade journals.
   • Letters from experts in academia and industry addressing the importance of the applicant's work.
   • Letters from individuals in the Public Sector attesting to the fact that the work is in the "National Interest."
   • Awards.

The above are examples of the kind of documentation typically submitted in support of a National Interest Waiver. However, depending upon individual facts and circumstances, other types of evidence may also be presented.

In evaluating whether an applicant's admission would be in the “national interest,” the CIS will favorably consider the following:

• evidence that the alien's admission will improve the national economy;
• evidence that the alien's admission will improve the wages and working conditions of U.S. workers;
• evidence that the alien's admission will improve education and training programs for U.S. children and under-qualified workers;
• evidence that the alien's admission will improve health care;
• evidence that the alien's admission will provide more affordable housing for young and/or older Americans;
• evidence that the alien's admission will improve the environment in the United States and make for more productive use of natural resources; or
• evidence that another U.S. government agency determines that the alien's admission is in the national interest.

Please note, however, that this list is not exhaustive.

To be successful, it is helpful to present at a minimum: letters from recognized experts in the field who are capable of commenting on the alien's work or generally the field of expertise; a letter from an employer if appropriate and available; at least one letter from a U.S. government or public agency articulating an interest either specifically in the alien, or generally in the kind of work the alien proposes to pursue. The last item may be key to the success of the application. (The government letter may represent national, state, or local interests.)

Please use the outlines prepared for the letters of support. However, writers should of course include any other comments which generally support the application or inform about the field in which the person is working.