EB-2 National Interest Waiver (NIW)

EB-2 NATIONAL INTEREST WAIVER

For most employment-based cases, an applicant must have a job offer, and a labor certification must be filed showing that no US workers are available for the position. However, the labor certification process may be “waived” if the applicant possesses an advanced degree in a relevant field and can show that his work will benefit the “national interest” of the United States to such a degree that it overrides the need to protect U.S. workers with the labor certification process. Further, for the EB-2 National Interest Waiver classification, a foreign national may “self-petition” so no employer or job offer is needed. This makes the National Interest Waiver a very attractive prospect to self-employed people. An employer may also sponsor a foreign national under this category.

Eligibility

EB-2 National Interest Waivers are available to individuals who have exceptional ability or who have an advanced degree. Applicants do not need a permanent offer of employment and must demonstrate that their position will be in the national interest. EB-2 National Interest Waiver recipients benefit by not being required to complete a labor certification.

Qualifications

An immigrant seeking to gain permanent residency as a EB-2 recipient through the national interest waiver must demonstrate that:

  • The area in which the foreign national seeks employment is of substantial intrinsic merit;
  • The prospective benefit of the foreign national’s services is national in scope; and
  • The national interest would be adversely affected if a labor certification were required. That is, the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Recent Trends

In order to meet the standard for NIW approval (the “substantially greater degree” test) the beneficiary must be shown to be more qualified than others in the field. Recently, however, neither unique expertise nor a rare combination of expertise’s has been acceptable evidence of “greater” qualification. (A shortage of Americans in the field has never been qualifying evidence of eligibility for the NIW.) Rather, USCIS now puts an emphasis on “unsolicited” evidence such as citation statistics or publicity featuring the beneficiary, showing his/her prominence as an authority in the field. Consequently, letters of support from others in the field, no matter how distinguished, are of diminishing help. Even letters of support from U.S. government administrators must specify impact in concrete terms.

Processing Time

To obtain a national interest waiver, the beneficiary must file a Form I-140 petition, Form ETA 750B, and supporting documents directly with USCIS. The beneficiary does not have to file anything with the Department of Labor. In addition, if a visa number is available, the beneficiary can concurrently file I-485 with I-140, and can also apply for employment authorization and travel document. Processing times for NIW depends on the case load at the specific USCIS service center which the petition is filed at.

Advantages

The national interest waiver has the following advantages over the traditional labor certification route to a green card:

  1. Does not require a labor certification.
  2. Does not require a permanent job offer in the United States.
  3. Faster than the labor certification process. You can take advantage of concurrent filing and obtain work authorization  and an advance parole document (allowing you to travel internationally) much sooner than with labor certification.  You may also obtain work and travel authorization for your spouse and children.
  4. More flexible than the labor certification process. Compared to the labor certification process, you can change jobs much sooner and can change to a much broader range of job opportunities.
  5. You can self-petition. That is, the petition does not require the signature of anyone at the university or company where you work. In fact, in some cases, you can even be self-employed.

Disadvantages

There are some disadvantages to the national interest waiver, compared to the labor certification process. You have to be very good — not just someone with “good grades,” not just someone who happens to be working on some major federally funded project (no matter how important that project may seem). That is, not everyone qualifies. The national interest waiver can also be less predictable than the labor certification process — especially if you file on your own or obtain help from someone who is not experienced with this specialized area of immigration law.

How We Can Help Obtain Your EB-2 Visa

Applying for a EB-2 National Interest Waiver (NIW) is a complicated process. Before beginning your NIW petition, an experienced Rai & Associates attorney will first evaluate your situation and identify all of the immigration options available to you. You can always start this process by sending us your resume either by e-mail to info@hsrai.com or by fax to +1 415-693-9135. After reviewing your resume, we’ll have a frank discussion with you regarding your ability to secure an EB-2 visa. If we find you would be better served by pursuing an alternative visa category, we will advise you as to which other classification types are best for you, including, for example, EB-1A, EB-1B, EB-1C, or labor certification. In an NIW petition, it’s imperative to prove the national benefit applicants will provide by immigrating to America and working in their fields. The importance of strong recommendation letters and a well-drafted petition letter to support this central focus of an NIW cannot be overemphasized. The chances your NIW is approved will no doubt improve if you’re assisted by an experienced attorney. After you retain our firm for your NIW case, our experienced attorneys will regularly communicate with you and work closely with your recommenders throughout the whole process.

Our EB-2 visa attorneys experience benefits you in several key areas. We:

  • Clarify options and potential scenarios surrounding your case.
  • Assist you in collecting the proper information and documentation.
  • Correctly classify the application and ensure requirements are met.
  • Prepare and submit all USCIS and Department of Labor (DOL) forms and documentation.
  • Communicate with the DOL and USCIS throughout the process.
  • Monitor the entire EB-2 visa immigration application process.

EB-2 Visa Attorney Experience & Responsiveness that Makes a Difference. Our EB-2Attorney Pledge:

  • 100% commitment to processing your EB-2 Green Card quickly & successfully.
  • Strong EB-2 Green Card attorney experience & knowledge.
  • Open EB-2 Attorney communication & responsiveness is among our top priority.
  • Highest level of EB-2 Green Card Attorney service at an affordable FLAT rate.
  • Some EB-2 Green Card applications can be submitted in as little as 1-2 weeks.
  • To discuss your case call: (415)-693-9131 or Mail Us.
Something very important you may want to know

Frequently Asked Questions

  1. 1
    What are the differences between Regular EB-2 and EB-2 NIW petitions?

    For an ordinary EB-2 case, a U.S. employer needs to act as the case petitioner, and the petitioner (employer) needs to obtain a labor certificate before filing Form I-140 for the foreign national. The foreign national is called the “beneficiary”. The petition needs to establish the qualifications of the foreign national (an individual with advanced degree or exceptional ability). For an EB-2 NIW case, the foreign national can self-petition or have his/her employer be the petitioner. The petition not only needs to establish the foreign national’s qualifications under EB-2, but also demonstrate that the qualifications satisfy the National Interest Waiver requirements. Generally, it is more difficult to obtain immigration benefit under EB-2 NIW than the ordinary EB-2 because of the additional requirements for “national interest”.

  2. 2
    What are the minimum requirements for an NIW?

    Since this is an employment-based, second-preference (EB-2) petition, the beneficiary of an NIW must first qualify as either an “Advanced Degree Professional” or an “Alien of Exceptional Ability.”

  3. 3
    What is an Advanced Degree Professional?

    The term “Advanced Degree Professional” means that the beneficiary either has an advanced degree (M.A., M.S., M.E., M.D., or Ph.D.) or its foreign equivalent, and is working in an area that requires at least a bachelor’s degree or is traditionally regarded as a profession requiring a high level of postsecondary education, such as a lawyer, doctor, architect, engineer, or professor. In some cases, a bachelor’s degree plus five years or progressive experience in a professional occupation may satisfy the requirement of an “advanced degree.” Please keep in mind that applicants holding an advanced degree from a U.S. university or foreign equivalent do not need to additionally prove that they qualify as an “Alien of Exceptional Ability.”

  4. 4
    To apply for an NIW, do I have to be both an Advanced Degree Professional and an Alien of Exceptional Ability?

    No, an alien applicant needs only to satisfy either the “Advanced Degree Professional” or the “Exceptional Ability” requirement. Proof of both is unnecessary. Please note that qualifying as either one fulfills the minimum requirement for the EB-2 category and that fulfilling either requirement, or even both, does not automatically guarantee a successful NIW case.

  5. 5
    What distinguishes a successful NIW application from an unsuccessful one?

    There is no specific metric or set of criteria that distinguishes a successful NIW petition from an unsuccessful one. The burden of proof is on the petitioner and his or her counsel in terms of providing sufficient evidence to show that he or she meets the requirements for an NIW. As a general note, in our experience, the stronger the letters of recommendation and attorney petition letter presented, the greater the chances of approval.

  6. 6
    How important are expert skills or a unique background?

    It is not sufficient to state that the alien possesses expert skills or a unique background. Regardless of the alien’s unique experience or skills, the benefit the alien’s skills or background would provide the U.S. must convincingly outweigh the inherent national interest in protecting U.S. workers through the labor certification process.

  7. 7
    Can a Ph.D. student apply for an NIW?

    Yes. Since no job offer is required, a Ph.D. student may qualify for an NIW petition.

  8. 8
    How many publications are required to meet minimum NIW requirements?

    There is no minimum number of publications required. USCIS decides each petition on a case-by-case basis.

  9. 9
    Do I need to live in the U.S. in order to apply for an NIW?

    No, an alien may reside either in the U.S. or abroad. That said, your NIW claim will be more difficult to establish if you apply while living outside the U.S.

  10. 10
    Could an artist or musician qualify for an NIW?

    Yes. Artists and musicians can apply for an NIW.

  11. 11
    If I do not have any published articles in journals in my field, can I still apply for an NIW?

    Yes. There is no specific requirement of having published articles in order to apply for an NIW or get one approved. However, having published articles could make an NIW petition stronger.

  12. 12
    Once filed, how long does it take USCIS to render a decision on a case?

    It depends. The quickest turnaround for approval we’ve experienced was 24 hours. Generally, however, EB-1A processing takes between six months and a year. Since November 13, 2006, premium processing, which guarantees processing within 15 days, has been available to EB-1A visa applicants, and so if you’re looking to speed up the process and don’t mind spending an extra $1,225, then this service might be for you.

  13. 13
    I’m choosing between an NIW and an EB-1A. Which petition would you recommend I apply for?

    You should always keep in mind that filing both an NIW and an EB-1A petition concurrently is an option. However, each petition is different. While overall approval rates for EB-1A petitions tend to be lower, if your case is clearly strong enough to go that route, your chances of success are higher by applying for EB-1A. However, if your case is not as distinguished as successful EB-1A cases should be, an NIW petition would be a more realistic approach.

  14. 14
    If I have a labor certification pending, can I also apply for an NIW?

    Yes. U.S. Department of Labor (DOL) handles applications for labor certification, whereas USCIS, which is a part of U.S. Department of Homeland Security (DHS), handles NIW petitions. If your labor certification is ultimately denied, then you still have a chance of getting an NIW application approved. Either way, you would need to petition for an adjustment of status or apply for an immigrant visa. Note that, with respect to a labor certification, you are required to petition under the employer who sought the labor certification, and you would be required to work for that employer for at least some time after your immigrant petition (Form I-140) is approved. With an NIW, you are not bound to any particular employer.

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