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Changes made to national interest waiver test for EB-2 visas

There are many things U.S. immigration officials may look at when considering a given immigration request. For one, they may apply certain tests, as tests have been set out for some types of immigration matters. Understanding what tests immigration officials might use when it comes to their immigration case can be very important for foreign workers looking to work in the U.S. and the companies looking to hire them.

Immigration lawyers can provide such workers and employers with guidance on what sorts of things officials will likely be looking at in their case and what steps they may want to make in preparation for their case in light of this.

Now, sometimes, changes are made to the tests officials use in immigration matters. For example, changes were recently made to the tests related to national interest waivers for EB-2 visas.

The EB-2 visa category is one of the employment-based green card categories here in America. Among the requirements a worker generally needs to meet to qualify for this visa type are the labor certification and job offer requirements. However, a worker can be exempt from these two requirements if they receive a national interest waiver.

In 1998, a test was set out for officials to use when considering requests for such waivers. The test had multiple prongs, including a prong that required that, generally, for a worker to be eligible for a waiver, it had to be shown that it would harm the national interest for standard testing of the U.S. job market to be done for the position the worker would fill.

This test had its critics. Among the criticisms leveled against it were that it was overly restrictive and too subjective.

In a decision made late last month, the U.S. Citizenship and Immigration Services’ Administrative Appeals Office opted to scrap the 1998 test, and replace it with a new one. While keeping some elements of the old test, the new test does away with the “harm to national interest” prong, replacing it with factors looking at things like how beneficial granting a waiver would be to the U.S. and how well-positioned the worker is to help with the proposed endeavor.

What impacts the new test will have will likely be heavily influenced by how it is applied by officials. So, it will be interesting to see what the new test ends up looking like in practice.

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