Understanding the Eligibility Criteria for NIW: EB2 National Interest Waiver (NIW) Green Card

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Shawn Sedaghat, Esq.

A National Interest Waiver is a method of obtaining work-Based U.S. lawful permanent residence without an employer as sponsor.

The National Interest Waiver (NIW) offers a foreign national a unique path to obtaining a U.S. green card under the EB-2 visa category. 

The NIW allows aliens of extraordinary ability to self-petition, bypassing the need for an employer’s sponsorship. 

The petitioner can directly file for the Adjustment of Status to the United States Citizenship and Immigration Services by submitting a request for evidence.

The United States Citizenship and Immigration Services (USCIS) is tasked with processing these NIW applications. Immigration lawyers, who specialize in immigration and green card matters, are crucial in guiding applicants through this complex process, addressing various aspects such as employment, labor certification, immigration services, and research. 

They also help obtain critical documents like letters of recommendation, a vital step for foreign nationals, particularly those demonstrating exceptional ability.

What Does NIW Stand For? What Does NIW Stand For?

NIW stands for National Interest Waiver, a provision under the USCIS’s EB-2 visa category. This waiver exempts eligible foreign nationals from the standard job offer and labor certification process requirements if their work satisfies the “National Interest test” set by the United States. 

This is an avenue for foreign nationals to secure green cards with the assistance of a petitioner.

The USCIS oversees the comprehensive immigration process, including green card applications. The administrative appeals office plays a significant role in managing priority dates and offering expert consultations for applicants to adjust status cases. 

What Is Being Waived for EB-2 NIW Green Card?

Typically, in the EB-2 visa category, applicants must have a job offer from a U.S. employer willing to sponsor them for a Green Card. This requirement can be a significant hurdle for many foreign nationals, as finding a job offer in a highly competitive job market can be difficult.

However, the National Interest Waiver waives this job offer requirement for individuals who can prove that their work is in the national interest of the United States. This means their work should contribute significantly to national security, economic growth, healthcare, or other fields directly impacting the country’s well-being.

By waiving the job offer requirement, the EB-2 NIW Green Card provides a pathway for individuals to contribute their exceptional abilities or advanced degrees to the United States without being tied to a specific job or employer.

Overall, the waiver of the job offer requirement for the EB-2 NIW Green Card is a significant benefit for foreign individuals with exceptional abilities or advanced degrees who wish to contribute their expertise to the United States.

It allows them to bypass the often challenging task of finding a U.S. employer willing to sponsor them for a Green Card and instead focus on demonstrating the national interest and impact of their work.

The EB2 NIW waives the standard job offer and labor certification requirements. This enables foreign nationals with exceptional ability or advanced degrees to apply for a green card without the usual prerequisites. This is especially advantageous for physicians seeking a national interest waiver.

What Are the Advantages of Applying for an EB-2 NIW?

The EB-2 NIW (Employment-Based Second Preference National Interest Waiver) is a visa category that offers significant advantages for professionals seeking to work and live permanently in the United States. As a professional in your field, applying for an EB-2 NIW can open up numerous opportunities and expedite the immigration process.

One of the key advantages of the EB-2 NIW visa category is the waiver of the labor certification requirement. Unlike other employment-based visas, which typically require an employer to undergo a labor certification process to demonstrate that no qualified American workers are available, the EB-2 NIW allows individuals to self-petition. 

Another advantage of the EB-2 NIW is that it allows for expedited processing times. This visa category falls under the national interest waiver, meaning that applicants must demonstrate that their work is in the national interest of the United States. 

By persuasively demonstrating the importance and impact of your work in fields such as science, education, business, or the arts, you can secure a faster application adjudication than other employment-based visas, which may be subject to lengthy processing delays.

Furthermore, obtaining an EB-2 NIW opens doors to additional benefits. Once approved, you can apply for a green card, which grants permanent residency status, offering stability and the ability to live and work in the United States indefinitely. 

Overall, the advantages are numerous and include:

  • Self-Petitioning: Eliminates the requirement for employer sponsorship.
  • Waiver of Labor Certification: Circumvents the often lengthy PERM process.
  • Flexibility in Employment: Allows for greater mobility in career paths.

What is PERM?

The EB-2 National Interest Waiver (NIW) Green Card through the Program Electronic Review Management (PERM) is a pathway for highly skilled professionals to obtain permanent residency in the United States. This program focuses on individuals with exceptional abilities in their respective fields whose immigration would be in the country’s national interest.

To qualify for the EB-2 NIW Green Card, applicants must hold an advanced degree or possess exceptional ability in the sciences, arts, or business that significantly contribute to the national interest. This category is known for its flexibility, allowing individuals to self-petition and bypass the typically required job offer and labor certification process.

Through PERM, applicants must complete a recruitment process, including advertising the job opening, and then file a labor certification application with the Department of Labor. The purpose of this requirement is to protect the rights of U.S. workers and prevent any potential displacement.

Once the PERM application is approved, applicants can file Form I-140, Immigrant Petition for Alien Worker. This petition establishes the beneficiary’s eligibility for the National Interest Waiver, proving that their work is substantially important to the United States.

What is an Advanced Degree for the EB-2 Visa?

An advanced degree is a U.S. academic or professional degree above a bachelor’s degree, like a master’s or doctorate. Alternatively, a bachelor’s degree with five or more years of progressive work experience is equivalent to at least ten years of an advanced degree. 

For those who have studied in the U.S., an advanced degree is vital to the EB-2 visa application. It highlights the applicant’s academic achievements and expertise in their field while proving they have been exposed to the American culture.

This is because education in the United States offers an exceptional educational environment for individuals seeking advanced degrees, providing them with the necessary skills and knowledge to excel in their chosen profession. 

Additionally, the EB-2 National Interest Waiver presents a valuable opportunity for an alien of extraordinary ability who has a diploma outside the U.S. to showcase their exceptional skills and impact in a way that benefits the United States. 

Individuals who have pursued their education outside the United States before proceeding with an Eb-2 NIW (National Interest Waiver) application must provide substantial evidence to prove the equivalency of their foreign qualifications to those recognized in the United States. 

This burden of proof rests with the individual, requiring thorough evaluation and validation by the appropriate government agency. 

The evaluation process involves a detailed assessment of the individual’s academic credentials, work experience, and professional achievements. The objective is to determine if the qualifications meet the standards set by the United States for employment-based immigration. 

This evaluation is crucial as it ensures that foreign-educated individuals possess the necessary skills and knowledge to contribute to the national interest of the United States. They must also demonstrate that their education and expertise align with their intended field of employment in the United States. 

The evaluation of their credentials is typically carried out by an authorized credential evaluation agency, which thoroughly examines the resources submitted by the individual. The burden of proof for foreign-educated individuals seeking Eb-2 NIW is a significant challenge, as it complicates an already intricate immigration process. 

USCIS might request additional documentation and evidence to verify eligibility for a green card based on these advanced degrees or equivalent experience. Such documentation encompasses labor certification details, specific NIW requirements, and every letter of recommendation.

Which Jobs Qualify for National Interest Waivers?

Jobs typically qualifying for a National Interest Waiver demonstrate substantial merit and national importance. These include roles in science, the arts, business, or other fields significantly benefiting U.S. employment. 

Foreign nationals applying for a National Interest Waiver are thus expected to show comparable evidence to demonstrate their value as foreign nationals and their potential impact on the country’s immigration system.

The application process involves submitting the necessary documents to the United States Citizenship and Immigration Services, including a letter of recommendation, research credentials, and proof of expertise in the foreign national field.

The National Interest Waiver (NIW) is an attractive option for foreign professionals seeking employment opportunities in the country as it allows specific individuals to bypass the requirement of a job offer and labor certification by demonstrating that their work would greatly benefit the national interest of the United States. 

Research, technology, and innovation-related professions play a significant role in qualifying for the NIW. Researchers or scientists engaged in groundbreaking research projects, particularly in fields that have the potential to advance critical areas such as renewable energy, environmental sustainability, or artificial intelligence, can make a strong case for their eligibility.

Furthermore, professionals involved in economic growth-related fields are also eligible for the NIW. This includes entrepreneurs, business leaders, and individuals with exceptional abilities in finance, investments, or other economically impactful areas. 

Through their entrepreneurial ventures, these individuals can demonstrate the potential for job creation, economic development, and innovation that directly benefits the national interest of the United States.

The National Interest Waiver encompasses many professions that align with healthcare, research, technology, and economic growth. Navigating the process successfully requires a thorough understanding of the specific criteria and the ability to showcase how one’s skills, expertise, or innovations contribute significantly to the country’s national interest. 

This unique immigration path presents a valuable opportunity for accomplished professionals to contribute to the growth and development of the United States.

Intellectual Property and EB-2 NIW

For those in the field of intellectual property, the EB-2 NIW visa can be a game-changer. It enables talented individuals to showcase their unique skills and expertise and contribute to the growth and development of the intellectual property landscape in the U.S.

By obtaining this visa, aspiring inventors, researchers, and artists have the opportunity to bring their ideas to life on American soil, while also benefiting from the stability and opportunities that the U.S. offers.

So, whether you’re an artist looking to protect your original pieces, an inventor with groundbreaking ideas, or a researcher with a passion for innovation, understanding the importance of intellectual property and knowing about the EB-2 NIW visa can open up new doors and opportunities for your career.

It’s all about protecting your ideas and finding the right avenue to showcase your talent.

NIW Legal Requirements: Qualifying for National Interest Waiver

To qualify, applicants must meet the three criteria under the Matter of Dhanasar:

Substantial Merit and National Importance: 

Endeavor must significantly benefit the U.S.

Firstly, an applicant must demonstrate that their work is in an area of substantial intrinsic merit. This means the work should have an inherent value, significance, or importance beyond the applicant’s personal or professional achievements. 

When we say “significant benefit,” we mean that your endeavor should go beyond the norm and bring substantial advantages to the country. It could be in any field – science, technology, business, arts, etc. The U.S. government wants to ensure that it’s rewarding those individuals who can make a real impact on the nation’s interests.

It’s not just about making money or creating jobs, although those are important, too. It’s about proving that your work positively influences the U.S. For example, if you’re working in a scientific field, your research should lead to breakthroughs that can address pressing national issues or contribute to the overall advancement of the country.

Ultimately, the key to qualifying for the NIW is to demonstrate that your endeavor is in the best interest of the U.S. It should have a lasting impact, promote economic growth, improve national security, or enhance the country’s cultural or educational landscape.

The applicant must prove that their work benefits the United States, not just a specific employer or industry.

Well-Positioned to Advance the Proposed Endeavor: 

The applicant must demonstrate the capability to contribute to the effort thoughtfully.

The applicant must prove that they are well-positioned to advance their work in the field of national interest. This entails demonstrating past achievements and the potential for future contributions. 

Supporting evidence, such as publications, patents, awards, conference presentations, media coverage, or letters of recommendation from experts in the field, can be vital in establishing the applicant’s qualifications.

Beneficial to the U.S. to Waive the Labor Certification: 

It should be more advantageous for the U.S. to waive the standard requirements in favor of the applicant’s contributions.

Another crucial requirement for the NIW is to show that it would be in the national interest to waive the provision of a job offer from a U.S. employer. The applicant must provide persuasive evidence that their contribution is of such magnitude that it outweighs the need for a labor certification process, as it would benefit the nation.

Meeting these legal requirements for the NIW can be complex and is often best navigated with an experienced immigration attorney specializing in employment-based visas. 

By understanding and satisfying these crucial criteria, foreign nationals can increase their chances of successfully obtaining a national interest waiver and paving their path to permanent residency in the United States.

What Evidence Should Be Submitted?

When seeking an EB-2 National Interest Waiver (NIW), it is crucial to provide a solid evidence package showcasing your exceptional abilities and how they directly benefit the United States. 

To meet the requirements set by the United States Citizenship and Immigration Services (USCIS), several types of evidence should be submitted to support your NIW petition.

First and foremost, it is essential to provide evidence of your advanced degree or exceptional ability in your field. This includes academic records, publications, patents, or other documentation demonstrating your expertise. 

Additionally, letters of recommendation from experts in your field can provide valuable support by highlighting your professional achievements and contributions.

Furthermore, it is essential to illustrate the national interest your work serves. This can be accomplished by showcasing evidence of your significant impacts on the field, such as citations or awards, or demonstrating how your work directly benefits the United States economy, healthcare, or other critical sectors. 

Any evidence demonstrating your work is in the national interest will be invaluable in strengthening your NIW case. It is also crucial to provide evidence of your plans to continue working in your field of expertise in the United States. 

This can include job offers, contracts, or letters of intent from potential employers or collaborators. By demonstrating that your continued presence and contributions in the United States are both necessary and beneficial, you can further support your NIW petition.

When preparing your evidence package for an EB-2 NIW, it is essential to provide documentation that showcases your exceptional abilities, demonstrates your impact on the field, illustrates the national interest you serve, and supports your plans to continue working in the United States. 

By presenting a comprehensive and compelling case, you can increase your chances of success in obtaining the National Interest Waiver.

National Interest Waiver Document Checklist

Applicants should prepare:

  • Evidence of an advanced degree or exceptional ability.
  • Letters of recommendation from experts.
  • Documentation of the work’s national importance.
  • Any other supporting evidence demonstrating eligibility for the waiver.

Additional Insights into NIW: Focusing on Key Terms

Exceptional Ability Membership and Professional Association

Showcasing exceptional ability is essential and plays a significant role in supporting the petitioner’s argument for eligibility and persuading the adjudicating officer that they deserve a waiver of the job offer requirement.

This can be done by providing evidence of achievements, recognition, and sustained national or international acclaim within the field of expertise. This may include awards, honors, citations, published articles, conference presentations, patents, or media coverage. 

Demonstrating high expertise is crucial in establishing one’s exceptional ability. It is essential to provide documentation proving active membership, such as a certificate, membership card, or letter of recommendation from other professionals within the field.

Membership in a professional association can be a testament to exceptional ability. Such memberships, especially in prestigious organizations, can provide supporting evidence to foreign nationals of the individual or foreign equivalent of national contributions and recognized standing in their particular profession.

For a successful EB-2 NIW visa application, providing compelling evidence of exceptional ability and active membership in professional associations is vital. This evidence should demonstrate the petitioner’s achievements, recognition, and contributions within their field.

NIW’s Relation to Current or Former Employers

While the NIW waives the need for current or former employers to sponsor the green card application, recommendations or endorsements from these employers can strengthen the petition by providing real-world evidence of the applicant’s contributions and capabilities.

Typically, evidence submitted for an EB-2 NIW application includes documentation of your educational background, work experience, and professional achievements. Moreover, you should present evidence that showcases your contributions to your field of expertise, such as publications, patents, conference presentations, or awards.

In addition to individual achievements, evidence of your relationship with current or former employers can also support your EB-2 NIW application. This evidence can be letters from employers, supervisors, or colleagues highlighting your significant role in their organizations and how it relates to the national interest.

Gathering as relevant documentation as possible when compiling evidence for an EB-2 NIW application is crucial to showcase your work’s expertise, contributions, and significance. 

A well-rounded and compelling evidence package will significantly enhance your chances of obtaining the NIW, and a lawyer specializing in immigration, specifically in national interest waiver cases, can guide you through the process.

Labor Certification Requirement and Its Impact

The Labor Certification Requirement, also known as the PERM Labor Certification, is a process through which an employer must demonstrate that no qualified U.S. workers are available for a specific job opportunity before hiring a foreign national. 

However, one of the significant advantages of applying for an NIW is that it allows applicants to bypass this labor certification process, thus saving time and effort.

By waiving the Labor Certification Requirement, the NIW program acknowledges that specific individuals possess exceptional abilities or a record of extraordinary achievement that directly benefits the national interest of the United States. 

This recognition enables qualified foreign nationals to get a green card without a job offer or employer sponsorship. Unlike other employment-based immigration categories, NIW applicants have the flexibility to self-petition, allowing them greater control over their career path and potential job opportunities.

By understanding the Labor Certification Requirement and the benefits it offers through the National Interest Waiver program, foreign nationals can strategize their immigration journey effectively. 

The ability to bypass the often complex and time-consuming labor certification process empowers individuals with exceptional skills or achievements to pursue their career goals in the United States.

Priority Date and Visa Bulletin

To navigate the process of obtaining a green card effectively, it is crucial to understand two key terms that play a pivotal role: the Priority Date and the Visa Bulletin.

The Priority Date is a timestamp determining an applicant’s place in line for an immigrant visa. Once an individual’s priority date is established, they can refer to the Visa Bulletin to determine when a visa becomes available for their specific category and country of chargeability. 

The Visa Bulletin, issued monthly by the U.S. Department of State, provides information on the availability of immigrant visas and outlines the cutoff dates that determine who can proceed with their applications for permanent residency.

Comprehending the significance of these terms is essential for NIW applicants. Firstly, the Priority Date helps establish an individual’s eligibility for a visa, as it determines when they can submit their application and start their journey towards permanent residency.

Secondly, the Visa Bulletin aids in understanding how long an applicant might have to wait before their visa becomes available. 

As the demand for specific visa categories can exceed the supply, the Visa Bulletin assists in managing the process by establishing cutoff dates based on the availability of visas.

A clear understanding of the Priority Date and Visa Bulletin allows applicants to plan their courses of action and make informed decisions throughout the application process. 

Learning Relating to National Interest

To fully comprehend the NIW, one must familiarize oneself with critical terms associated with this category. Terms such as “national interest” and “exceptional ability” require an in-depth understanding.

Learning about the National Interest Waiver can be an enriching experience for individuals aspiring to pursue career opportunities in the United States. A comprehensive understanding of key terms, such as national interest and exceptional ability, is crucial to increasing the chances of a successful NIW petition.

By focusing on key terms such as national interest and exceptional ability, individuals can enhance their understanding and increase their chances of obtaining a green card through the NIW route.

Looking into Other Aspects of EB-2 NIW

We’ll now navigate the complexities of the National Interest Waiver, highlighting the pathway to a green card as they are tricky due to changing every immigration law and regulation. These updates can affect your case, so staying on top is essential.

This journey goes beyond just getting a green card. We’ll look at how society influences the well-being of U.S. citizens who have successfully obtained the waiver. Furthermore, you will read into marriage. employment, history of deportation, and their influence on the National Interest Waiver.

Note: For personalized guidance, consult with an immigration professional.

Marriage and EB-2 NIW

If you’re married to an applicant filing for the NIW, you may be wondering whether your case can be included in their application or if you need to submit a separate one. Well, the good news is that your family can indeed be part of the application for a waiver.

By including your spouse and any dependent children in the same NIW application, you can save time, money, and effort by filing everything together. This means you can showcase your qualifications, achievements, and the national interest of the work you and your spouse have done as a team.

However, it’s important to keep in mind that each family member’s eligibility will be evaluated on an individual basis. While the primary applicant may have exceptional abilities, the spouse and children must also meet certain criteria to be included in the application.

These criteria may vary depending on their age, education, and any relevant contributions they have made in their respective fields.

Employment and EB-2 NIW

While having employment in the United States could be a positive factor in your application, it is not a strict requirement. The focus is on your exceptional abilities and how they can contribute to the national interest.

So, whether you’re currently employed, self-employed, or looking for opportunities, as long as you can showcase your expertise and convince the authorities that your work is in the best interest of the nation, you can apply for the EB-2 NIW visa.

On the other hand, obtaining a work permit, also known as an Employment Authorization Document (EAD), is not mandatory before your NIW application is approved. In fact, the EB-2 NIW visa itself bypasses the labor certification and allows you to work in the United States without the need for a separate work permit.

While not a requirement for the EB-2 NIW visa, having an EAD can provide added flexibility during the application process. It enables you to work for any employer in the U.S., including self-employment.

Plus, having an EAD ensures you’re legally authorized to work and eliminates potential confusion for future employers. Ultimately, it’s a fantastic option if you want to start working while your EB-2 NIW application is being processed.

The big question is, can you start working before you receive your NIW approval?

Unfortunately, the answer is not a straightforward “yes” or “no.” While waiting for your EB-2 NIW application to be approved, you technically don’t have a work permit.

However, there is a provision called “portability” that allows you to work for a new employer in your field of expertise if certain conditions are met. This provision comes into play if you already have a valid work permit (EAD) from a different employment-based application, such as an H-1B or L-1 visa.

Now, if you don’t already have a work permit from another employment-based application, it’s generally advisable to hold off on starting work until your EB-2 NIW application is approved, and you receive the necessary work authorization.

While it can be frustrating to wait, it’s important to remember that every immigration law can be complex, and it’s crucial to comply with them to avoid any legal issues down the line.

History of deportation and its effect on EB-2 NIW

The methods and reasons for deportation have evolved over time, reflecting changes in society, politics, and global affairs. In some instances, entire communities have been uprooted and forced to leave their homes, resulting in immense disruption and hardship.

A deportation history doesn’t automatically disqualify you from obtaining an EB-2 NIW visa. However, it can complicate things and potentially affect your chances of success.

You see, the USCIS might view a previous deportation as a negative factor when evaluating your application. They may question your ability to meet the eligibility criteria for the NIW, which includes demonstrating exceptional ability in your field and proving that your work is of national interest.

A deportation on your record could raise concerns about your character, moral standing, and ability to contribute to the country’s economy. So, if you have a history of deportation, it’s important to provide evidence that supports your rehabilitation and highlights your positive contributions since then.

With the right approach and solid evidence of your exceptional ability and national interest contribution, you can still have a shot at obtaining an EB-2 NIW visa. Stay positive, gather all the necessary documentation, and seek professional assistance to navigate this journey.

How to Apply for the Waiver?

Applying for a National Interest Waiver (NIW) requires careful preparation and a comprehensive understanding of the application process. To start the application process, applicants should file Form I-140, a petition for an immigrant visa. 

This form must be accompanied by substantial evidence supporting the National Interest Waiver claim. The waiver is granted to applicants who possess exceptional abilities and whose work significantly impacts the national interest of the United States.

After submitting Form I-140, the USCIS will review your application and decide your eligibility. The processing time may vary, and it is recommended to check the USCIS website for updates regularly. In some cases, the USCIS may request additional evidence or schedule an interview to assess your qualifications further.

Once your Form I-140 is approved, you can proceed with the final step in the EB-2 NIW process – Adjustment of Status or Consular Processing. Adjustment of Status is for individuals already in the United States, while Consular Processing is for those outside the country. 

This step involves submitting Form I-485, Application to Register Permanent Residence or Adjust Status, and supporting documents.

Throughout the process, it is essential to consult with an immigration attorney who specializes in employment-based immigration. They can guide you through the application process, help you gather the proper documentation, and enhance your chances of success. 

Applying for an EB-2 NIW can be complex and time-consuming, so following the instructions carefully and seeking professional assistance is crucial.

Frequently Asked Questions

What is a letter of recommendation for an EB-2 NIW Green Card?

A letter of recommendation for an EB2 NIW green card from an immigration lawyer is a document from experts or authorities in the field attesting to the applicant’s exceptional ability and the significance of their master’s degree and work to the national interest waiver. 

If my EB2 NIW Petition is denied, how long must I wait to file under EB2 NIW or other categories again?

After a denial, no mandatory waiting period exists before reapplying under EB2 NIW or other categories. However, addressing the reasons for the initial denial is crucial in subsequent immigration applications. 

The United States Citizenship and Immigration Services may require additional documentation from the petitioner for the national interest waiver green card.

Can I file under the category of EB-2 NIW and another category simultaneously?

Yes, simultaneously filing under EB2 NIW and another category is possible if understanding the eligibility criteria for NIW are met.

What supporting evidence will best show that the foreign national will significantly contribute to the national interest when applying for EB-2 NIW?

Supporting evidence includes:

  • Documentation of past significant contributions.
  • Letters of recommendation from field authorities.
  • Evidence of ongoing or future projects of national importance.

The key is to present a compelling case that your work is of national interest and that you have the potential to contribute to the United States significantly.

Providing a combination of solid evidence, such as past achievements, expert recommendations, professional involvement, and plans, will help strengthen your EB-2 NIW application.

How can an EB-2 NIW petition be filed?

The petition is filed using Form I-140, along with comprehensive evidence supporting the national interest claim.

Whom should I contact to obtain letters of recommendation for my EB2 NIW petition?

Letters should be obtained from experts, scholars, government agency officials, or field leaders familiar with your work.

I am outside the U.S. Can I apply for the EB2 NIW category? What is the success rate?

Applying from outside the U.S. is possible. The success rate depends on meeting the NIW criteria and varies annually.

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