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Normally, if you qualify for the second employment-based ("EB-2") category (Workers Holding Advanced Degrees and Persons with Exceptional Ability in the Arts, Sciences and Business), you are subject to the labor certification requirement. However, an exception exists if your employment is in the "national interest".
In a decision entitled New York State Department of Transportation, issued on August 7, 1998, the INS enumerated very restrictive criteria for obtaining National Interest Waivers. The petitioner is required to demonstrate that going through the labor certification or PERM process would be contrary to the national interest.
This can be difficult to prove. However, when a person is particularly distinguished in his or her field, the labor certification or PERM process may be contrary to the national interest since they do not result in an approval where a U.S. worker meets the minimum qualifications for the job. Our law firm has been successful in obtaining national interest waivers for persons where just meeting the minimum qualifications are not adequate. For example, if a distinguished scientist is working on a cure to a disease, it would be contrary to the national interest for the employer to have hire a minimally qualified person for the position.
In addition, Congress passed a law in 1999 which eased these restrictions for physicians who practice medicine in medically-underserved areas or for the Veterans Administration. The INS issued regulations eviscerating many important portions of the law. Our law firm sued the INS in Federal Court, and on June 7, 2006, the U.S. Court of Appeals for the Ninth Circuit, in Schneider v. Chertoff, struck down many of the restrictions contained in the INS regulations.
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