Workers who can demonstrate that they will be coming to the U.S. to do work that is in the "national interest" may get a visa without having a specific job offer and without obtaining a labor certification from the Department of Labor.  Under this particular provision of the law, which applies to persons with exceptional ability and members of the professions holding an advanced degree or its equivalent in the sciences, arts, or business (EB-2), it is said that the INS "waives" the job offer and the labor certification requirements.  While eligible applicants do not need a job offer or employer and may sponsor themselves, they still must show that they will be coming to the U.S. to do work in their particular field of expertise.

In short, applicants for the National Interest Waiver ("NIW") must show that if they are granted permanent residence, their work will substantially and prospectively benefit the economy, culture, or educational interest or welfare of the U.S.  The INS has set forth the general factors which will be considered in connection with a NIW application.  These factors include whether granting the waiver will: 

• Improve the U.S. economy; 
  
  
• Improve wages and/or working conditions of U.S. workers; 
  
  
• Improve U.S. health care, education or training programs for U.S. children and/or underqualifed workers;
  
  
• Create more affordable housing for low income residents of the U.S.; 
  
  
• Improve the environment and/or assist with the conservation of natural resources; 
  
  
• Benefit a U.S. government agency (ie. by working for the agency).  
  

National Interest Waivers are usually granted only to applicants who have "advanced degrees" (ie. those who have at least the equivalent of a U.S. master's degree or its equivalent) or who have "exceptional ability" (defined as: "a degree of expertise significantly above that ordinarily encountered.").  The INS has set forth 6 factors that pertain to exceptional ability.  The applicant will qualify if he or she can show at least 3 of these with respect to his or her particular ability.  These factors include: (1) license; (2) degree; (3) 10 years of experience; (4) high salary; (5) display of work; and/or (6) publication of work.

On August 7, 1998, the INS issued a decision in a case known as In re New York State Department of Transportation (NYSDOT) in which it clarified the standard for NIW cases.  Under the NYSDOT standard, a NIW applicant must provide evidence which addresses eligibility under each of the following categories: 

• The applicant must show that the prospective employment is in an area of "substantial intrinsic merit."; 
  
  
• The benefits of the applicant's employment are "national in scope"; 
  
  
• The applicant must show that the national interest would be "adversely affected" if a labor certification were required.   
  

Some commentators have noted that NYSDOT has made the NIW standard higher than that required to establish "prospective national benefit" under the "First Preference - Priority Workers" category.  Nonetheless, the INS continues to approve NIW applications, thus showing that it is possible to obtain a benefit under the NIW category.