Most of the USICS denials focuses on the fact whether the waiver of the job offer requirements, and thus the labor certification, is in the national interest.

8 C.F.R. §204.5(k)(4)(ii) states:

Exemption from job offer. The director may exempt the requirement of a job offer and thus of a labor certification, for aliens of exceptional ability in the science, arts, or business if exemption would be in the national interest.  To apply for the exemption, the petitioner must submit  form ETA-750B, Statement of Qualifications of Alien, in duplicated, [or the corresponding part of ETA Form 9089] as well as evidence to support the claim that such exemption would be in the national interest.

Neither the statute nor Service regulations define the term "national interest." Additionally, Congress did not provide a specific definition of "in the national interest." The Committee on the Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by increasing the number and proportion of visas for immigrants who would benefit the United States economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989).

Supplementary information to Service regulations implementing the Immigration Act of 1990 (IMMACT), published at 56 Fed. Reg. 60897, 60900 (November 29, 1991), states:

The Service believes it appropriate to leave the application of this test as flexible as possible, although clearly an alien seeking to meet the (national interest) standard must make a showing significantly above that necessary to prove the "prospective national benefit" (required of aliens seeking to qualify as "exceptional.") The burden will rest with the alien to establish that exemption from, or waiver of, the job offer will be in the national interest.  each case is to be judged on its own merits.

Matter of New York State Dept. of Transportation, 22 I & N Dec. 215 (Comm. 1998) has set forth several factors which must be considered when evaluating a request for a national interest waiver (NIW). First, it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

USCIS the third and final factor the most and it is whether the national interest would be adversely affected if a labor certification were required to facilitate the petitioner's continued services. An alien seeking an exemption from the labor certification process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process. At issue is whether this petitioner's contributions in the field are of such unusual significance that the petitioner merits the special benefit of a national interest waiver over and above the visa classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of achievement with some degree of influence on the field as a whole.

Matter of New York State Dept. of Transportation affirmed that "[b]ecause, by statue. 'exceptional ability' is not by itself sufficient cause for a national interest waiver, the benefit which the alien presents to his or her field of endeavor must greatly exceed the 'achievements and significant contributions' contemplated in the regulation at 8 C.F.R. 204.5(k)(3)(ii)(F)."