EB-2 (National Interest Waiver)
A petition for an employment-based immigrant visa under the second preference (EB-2) generally requires a permanent job offer and a corresponding approved labor certificate. As a result, not only does the applicant need to have a job offer from a U.S. employer, but he must rely on that particular employer to petition on his behalf. To make the case even worse, the labor certification process can be a time consuming and costly undertaking for employers. That is why many employers are reluctant to petition on behalf of foreign applicants under this category.
However, under the “National Interest Waiver” (NIW) provision for EB-2, an individual may seek a waiver of the otherwise required job offer, as well as the labor certificate, by establishing that his or her admission to the permanent residency would be beneficial to the United States, so-called “national interest”. As a result, the potential applicants may petition on their own behalf. However, because of the higher evidentiary standard an applicant must meet, the NIW requires more than a regular EB-2 petition. The procedure is to file the Form I-140 together with the corresponding evidence to establish that the foreign individual’s admission to the United States as a permanent resident would be in the national interest.
To qualify for NIW, an individual must initially qualify either as an advanced degree professional or as an exceptional ability alien. An advanced degree of professional shall possess a master degree or higher (or its foreign equivalent). An exceptional ability alien shall possess a degree of expertise in sciences, arts, or business significantly higher than ordinarily encountered.
In order to obtain the NIW, the foreign individual must demonstrate qualification based on a three-prong test.
First, the foreign individual must demonstrate that his or her proposed endeavor has both substantial merit and national importance. In order to support the argument that the foreign individual’s work has substantial merit, one may submit the evidentiary document explaining what are the practical applications or benefits of that work to the U.S. Letters of recommendation from experts in the field explaining a foreign individual’s research and its implication and significance to the U.S. is also helpful, in addition to any other publications and reports detailing the significance of that individual’s endeavor and the benefits of such work to the U.S.
In determining whether the proposed endeavor has national importance, the USCIS consider its potential prospective impact. For example, a physician working in one hospital may appear to only be benefiting the geographic region the particular hospital serves. However, the physician can demonstrate that they are benefiting the nation as a whole through dissemination of their research publications, or through the development of new procedures that are implemented in hospitals outside of their geographic region. Other evidence to support the argument of national importance includes
- funding from the government-related agency: any instance of the work being funded by the U.S. government can easily substantiate the claim that a foreign individual’s work has benefits to the U.S. as a whole
- citations: not only can citations show the impact of a foreign individual’s work, they can also demonstrate that the work is being implemented or utilized by researchers around the nation, and therefore, is of national importance.
Second, the foreign individual is well positioned to advance the proposed endeavor. Factors the USCIS may consider include the foreign individual’s education, skills, expertise and record of success in related or similar efforts; a plan for future activities; any progress toward achieving the proposed endeavor; and the interest of potential customers, users, investors or other relevant entities. The petitioners must establish, with substantial evidence, that they are well positioned to advance the proposed endeavor. Examples of evidence can be detailed expert letters that demonstrate the interest of the U.S. government in the petitioner’s research, documents showing that the petitioner played a critical role in projects funded by government grants, and the petitioner’s notable achievements in his or her field including memberships or media reports.
Third, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. For this requirement, the USCIS may consider factors like
- whether it would be practical for the petitioner to secure a job offer or labor certification given the nature of his/her skillset
- whether the United States would be benefited from the petitioner’s work
- whether the United States urgently requires the petitioner’s skillset
- whether the petitioner’s endeavor may lead to potential creation of U.S. jobs
- whether the petitioner is self-employed in a manner that generally does not adversely affect the U.S. workers
While the chance of approval for the NIW petitioners outside the U.S. will not be lower merely because you are applying from outside the U.S., the immigration officer reviewing the case may tend to pay more attention on your plan to continue your work when you obtain the immigrant visa and enter the U.S. and how your proposed endeavor is nationally important to the U.S. To provide the USCIS with information about your plans to work in the U.S., you are recommended to prepare a detailed, sworn statement regarding your intended future work in the U.S. and submit the statement with supporting evidence of potential employment in the U.S. (though an actual job offer itself is not required for the NIW petitioner).
The regular processing time for NIW petition is 6-12 months on average, but this is not a hard timeframe, since processing times also depend on the particular USCIS Service Center that has jurisdiction, as well as the individual USCIS officer who processes the case.
USCIS adjudicates NIW in a case-by-case basis. Therefore, NIW cases require an experienced attorney to carefully evaluate and analyze the strengths and weaknesses of each individual case and develop a tailor-made strategy that highlights the merits of each petitioner. Polaris Law Group has necessary expertise and experience to successfully guide you through the process.
DISCLAIMER: This article includes general information and interpretation of the law. The materials here are for information purpose only and may not reflect the most current development of immigration law. The materials here are not intended, and must not be taken, as legal advice on any particular facts or circumstances. You should contact an attorney for advice on specific legal issues or problems.
