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 6 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.
A foreign national who
may be eligible to seek permanent residence status in the Employment Based, 2nd Preference or EB-2 Category.
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.
To qualify for a EB-2 National Interest Waiver Green Card, the applicant must demonstrate that
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.
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:
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 alien 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.
Securing an EB-2 NIW Green Card is a 2 step process as given below:
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:
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.
If the foreign national is submitting a petition as an Alien of Exceptional Ability, merely submitting evidence of 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 that is ordinarily encountered.”
Once the I-140 immigrant visa petition is approved by the USCIS, the next step in the process depends on where 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).
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.
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).
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.
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 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 like to determine your eligibility for permanent residence under the EB-2 National Interest Waiver category, or need help in filing for a Green Card under EB-2 NIW, contact our experienced immigration attorneys immediately for a FREE Immigration Consultation.
We’ll analyze your specific situation and recommend the most effective strategy based on our attorneys' near 100% success rates.
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