How to Prove that Requiring a Labor Certification Would Adversely Affect the U.S. National Interest

Proving the first two prongs of the three-prong test for EB2 National Interest Waiver petition is not very difficult for many petitioners, but proving the third prong could be challenging for some EB2 National Interest Waiver petitioners. In the NYSDOT case, the petitioner failed to show that it would “suffer a substantial disruption in its efforts to maintain New York’s bridges and roads” if an EB2 National Interest Waiver petition were not granted.

To meet this requirement, the alien applicant should demonstrate that “the national interest would be adversely affected if a labor certification were required.” It means that the alien applicant should show a national benefit that is so great that the benefit outweighs the national interest in protecting job opportunities for U.S. workers having the same minimum qualifications through the DOL's labor certification process.

For the third prong test, the petitioner may argue that the alien applicant's skill set and achievements are outstanding, thus the labor certification process may overlook the exceptional skills and outstanding achievements, and therefore harm the U.S. national interest, by employing other workers only meeting the minimum qualification requirements for employment in the proposed field.

To help satisfy this requirement, the alien applicant may focus on several aspects:

1) Alien's past record of achievement: The alien applicant may provide evidence of the alien's past record of achievement. The alien applicant should establish that “the alien’s past record justifies projections of future benefit to the national interest.” These specific past achievements should distinguish the alien applicant from other people in the field. These past achievements can be shown in the form of publications, citations, prizes or awards, patents, organization membership, judging the work of others, presentations at conferences or seminars, authoring book chapters, and media coverage.

2) Significant impact or influence on the field: The alien applicant may demonstrate a significant impact or influence on the field of endeavor. The alien applicant could demonstrate “a significant benefit to the field of endeavor” by showing the practical significance of the alien’s work or the widespread adoption by others in the field, through evidence such as citations to the work or successful applications of the work in the field.

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