The Second Employment Based (EB2) category generally requires an offer of permanent employment from a U.S. employer and a labor certification from the U.S. Department of Labor that there are not U.S. workers able, willing, qualified, and available for the position offered to a foreign national. The requirements of a job offer and an approved labor certification can be waived, however, if a foreign national can show that a waiver would be in the national interest. Demonstrating that a waiver would be in the national interest is a high bar and typically only those foreign nationals who are at the top of their field are successful in applying for a National Interest Waiver (NIW).

In order to qualify for the EB2 category on a NIW foundation, a foreign national must meet two requirements. First, the foreign national must show that he or she has an advanced degree (e.g. Master's or Doctorate degree) or a showing of exceptional ability in the sciences, arts, or business, that will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the U.S. (Note: As a practical matter, CIS is unlikely to conclude that the beneficiary merits a NIW if he or she is unable to prove that the beneficiary has exceptional ability.) Second, the foreign national must demonstrate that a waiver is in the national interest.

The battleground for securing a NIW typically lies in demonstrating that the foreign national's work is in the national interest. The immigration law does not define in exact terms what qualifications one must show to obtain a NIW. The most recent expression of the standard for a NIW was set out in the precedent decision of In re: New York State Department of Transportation (NYSDOT), Interim Dec. 3363, (Acting Assoc. Comm'r, Programs August 7, 1998). UnderNYSDOT, the petition must also show that:

• The beneficiary of the NIW seeks employment in an area of substantial intrinsic merit. Cases are evaluated on a case-by-case basis, so it is not enough to merely show employment in a field with substantial intrinsic merit (ex., in NYSDOT, the engineering of bridges was found to clearly have substantial intrinsic merit);

• The proposed benefit will be national in scope (Note: Regional scope is not enough. For example, education is in the national interest, but the impact of single schoolteacher in one school would not be in the national interest. Building and maintaining bridges in New York State in NYSDOT was in the national interest because it connected New York State to the national transportation system); and

• The national interest would be adversely affected if a labor certification were required for petitioner. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the petitioner by making available to U.S. workers the position sought by the petitioner.

It is not sufficient for the petitioner simply to enumerate the foreign national's qualifications or to show that the foreign national plays an important part in the project. The foreign national must clearly present a significant benefit to the field of endeavor. Exceptional ability is generally not enough for a NIW. The benefit the foreign national presents must go beyond exceptional ability and greatly exceed the achievements and significant contributions contemplated as being in the national interest and meriting a waiver.