EB-2 National Interest Waiver (EB-2 NIW)

Introduction

Employment-based Green Card applications generally require sponsorship from a U.S. employer which includes an offer of permanent employment in the United States. Also, some require additional certification from the U.S. Department of Labor (DOL) through a Labor Certification process which itself can take anywhere from 8 to over 18 months.

The EB-2 National Interest Waiver (EB-2 NIW) category provides an exemption to both of these requirements, thus offering a significantly quicker process for qualifying foreign nationals to obtain permanent residence in the U.S.

1. EB-2 Green Card Category – Eligibility

A foreign national who:

• is a member of the professions holding an advanced degree or its equivalent, or
•  has exceptional ability in the fields of sciences, arts, or business

may be eligible to seek permanent residence status in the Employment Based, 2nd Preference or EB-2 Category.

DID YOU KNOW?
‘Advanced Degree‘ is generally defined as a Master’s degree or its equivalent or higher OR a Bachelor’s degree plus 5 years of progressive experience.

‘Exceptional Ability‘ in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the respective field (distinguishable from Schedule A Group II “Exceptional Ability in Arts and Science”).

2. EB-2 National Interest Waiver – What Is EB-2 NIW?

Generally, in order to seek an immigrant visa in the EB-2 category, an employer must file a Form I-140 immigrant visa petition on behalf of the foreign national which must be accompanied by an approved and certified Labor Certification (ETA Form 9089).

The EB-2 National Interest Waiver category waives the requirement for the Labor Certification and does not require an employer or a specific job offer.

Under the EB-2 National Interest Waiver Green Card category, qualifying foreign nationals can self-petition for a Green Card and avoid the Labor Certification process.

DID YOU KNOW?
Obtaining the Labor Certification is a process whereby the Department of Labor must certify that there are no U.S. workers who are able, willing, qualified, and available to perform the offered job after the employer has undertaken a prescribed round of recruitment for the particular position.

The labor certification process can take anywhere from 8 to over 18 months. The EB-2 NIW category eliminates the additional processing time involved in obtaining a certified Labor Certification from the DOL.

3. EB-2 NIW Requirements

To qualify for an EB-2 National Interest Waiver Green Card, the applicant must demonstrate that:

• he or she is qualified to seek permanent residence status under the EB-2 Green Card category, and
• he or she will work permanently in the U.S. in the national interest of the United States

The EB-2 NIW applicant must establish that he or she will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

DID YOU KNOW?
The EB-2 NIW category waives the requirement of obtaining a certified labor certification from the DOL and does not require a permanent job offer from a U.S. employer for foreign nationals who would otherwise quality for EB-2 Green Card because that person’s employment in the U.S. would greatly benefit the nation.

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4. NYSDOT Test: The Three-Pronged Test For EB-2 NIW

Although, the term “national interest” is not defined in the statute or the regulations, USCIS currently follows a three-pronged test set out in Matter of New York State Dept. of Transportation (popularly referred to as “NYSDOT“) to see if an applicant qualifies for a waiver of the job offer requirement.

The NYSDOT test states that an EB-2 NIW Green Card applicant:

a.must seek employment in an area that has substantial intrinsic merit

b.must demonstrate that the proposed benefit to be provided will be national in scope, and

c.must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the applicant by making available to U.S. workers the position sought by the applicant.

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My Case Scenario
Julio

Julio is a world-renowned Research Scientist working at a top-ranked research laboratory in Argentina. He has doctorate degree (Ph.D.) in his field which has been deemed to be the equivalent of a doctorate in the U.S. and is conducting research on infectious diseases. Julio’s research has led directly to the development of drugs that fight off serious infectious diseases. He’d like to obtain a Green Card to come to the U.S. to further his research here but does not want to wait for an employer to extend him a job offer.

Julio may be eligible for a Green Card in the EB-2 NIW category. As a doctorate degree holder, he is eligible for the EB-2 Green Card category as an advanced degree holder and his research and achievements may make him a foreign national of exceptional ability as well. Lastly, his work can most certainly be deemed to be in the national interest. Research in infectious diseases is an area of substantial intrinsic merit. His continued research in this area has the potential to provide benefits that are national in scope. Also, it can be argued that his employment in the U.S. is vital and that it would be contrary to the national interest to deprive U.S. laboratories or universities the chance to hire him.

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5. How To Apply For The EB-2 NIW Green Card?

Securing an EB-2 NIW Green Card is a 2-step process as described below:

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A. Step 1: The Form I-140

A foreign national who is self-petitioning in the EB-2 NIW category must submit to the USCIS a Form I-140, ‘Petition for Alien Worker’, a Form ETA 750B (which does not have to be submitted to DOL to be certified) along with all necessary supporting documents, including:

1.For Advanced Degree Holders:

An official academic record showing that he or she has a U.S. advanced degree or an equivalent foreign degree, or

An official academic record showing that he or she has a U.S. baccalaureate degree or an equivalent foreign degree, and letters from current or former employers showing that he or she has at least 5 years of progressive post-baccalaureate experience in the specialty.

Note: If the above standards do not readily apply to an alien’s occupation, he or she may submit comparable evidence to establish his or her ability.

IMPORTANT
If the foreign national is submitting a petition as an Alien of Exceptional Ability, merely submitting evidence for the 3 of the 10 prongs is not sufficient to be deemed “exceptional.”

USCIS must consider all of the evidence in its totality to make “final merit determination of whether or not the petitioner has, by a preponderance of the evidence, shown that the beneficiary is at a degree of expertise significantly above what is ordinarily encountered.”

B. Step 2: Adjustment of Status or Consular Processing

Once the I-140 immigrant visa petition is approved by the USCIS, the next step in the process depends on whether the beneficiary is physically located in the U.S. in valid nonimmigrant status (file Adjustment of Status) or outside the U.S. (file Consular Processing).

DID YOU KNOW?
EB-2 numbers generally remain current for all applicants except those born in India and mainland China.

Adjustment of Status

If the applicant is in the U.S. in valid nonimmigrant status or is otherwise eligible, the foreign national can file for Adjustment of Status (Form I-485) with USCIS and may continue to stay in the U.S. until a final decision is taken by the USCIS on his or her Adjustment of Status application.

It is important to note that an Adjustment of Status application can be filed only when the foreign national’s priority date is “current” as per the Visa Bulletin. The priority date is the date the Form I-140 is submitted to USCIS.

TIP
If a visa number is immediately available at the time of filing of I-140 petition, the Form I-140 and Form I-485 may be filed concurrently. This accelerates the Green Card process and enables the applicant to obtain an Employment Authorization Card (EAD).

Consular Processing

If the applicant is outside the U.S., upon approval of the I-140 immigrant visa petition, the approved visa petition will be forwarded to the National Visa Center (NVC) which will process the application and schedule an appointment for the foreign national at a designated U.S. Consulate or Embassy and will forward the application documents there.

The applicant will then be required to attend the interview as instructed, and if approved, will be issued an Immigrant Visa that will be valid for 6 months.

DID YOU KNOW?
The National Visa Center (NVC) will not schedule the interview and forward the EB-2 NIW case to the Consulate until the beneficiary’s priority date is current.

Conclusion

The EB-2 National Interest Waiver (EB-2 NIW) category allows qualifying foreign nationals to petition for a Green Card without the need for a U.S. employer, a job offer in the U.S. or a labor certification, resulting in a significantly quicker process for obtaining permanent residence in the U.S.

VisaPro immigration attorneys have successfully helped both U.S. employers and qualifying self-petitioning applicants through the EB-2 National Interest Waiver Green Card process.

If you are considering securing EB-2 NIW Green Card successfully, Schedule A Free Immigration Consultation Today >>. Our top immigration lawyers in USA will be happy to assist you.

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