1. The Process of U.S. Permanent Residency (Green Card) Petition in the Category of EB2 National Interest Waiver
Normally, employment-based immigrant visa petitions require both a job offer by a U.S. employer and a Labor Certification from U.S. Department of Labor (DOL) on behalf of the alien worker. However, for EB2 National Interest Waiver petition, neither a job offer nor a labor certification is required. The National Interest Waiver petition may be filed either by a sponsoring U.S. employer or by the alien applicant.
For an alien applicant to seek U.S. permanent residency in EB2 National Interest Waiver category, the following is the process:
1) The alien applicant should file Form I-140 application, Petition for Alien Worker, and also submit required evidence to USCIS. (It is possible to file From I-485 application concurrently with Form I-140 application)
2) Upon approval of Form I-140, the alien beneficiary should file Form I-485 application for adjustment of status when the immigrant visa is "current"; an immigrant visa number is not always available for EB2 National Interest Waiver petition, and if the alien beneficiary is in U.S. (On the other hand, if the alien beneficiary is outside the United States, the alien could complete the "Consular Processing" of status adjustment at a nearest U.S. consulate office.)
3) If the From I-485 application is approved by USCIS, the alien beneficiary is granted U.S. permanent resident status, and will receive a permanent resident card (Green Card) in mail. (If the alien beneficiary went through the immigrant visa process overseas, the alien beneficiary can enter the U.S. and receives an immigrant visa attached to the passport at the U.S. port of entry, to serve as evidence of immigrant status until receiving the Green Card in mail.)
The Consular Processing is a method that you can apply for an immigrant visa at a U.S. consulate overseas after your Form I-140 petition is approved and you are not in U.S. If the Form I-140 petition is approved and you are not in the United States, the USCIS will send the approved Form I-140 petition to the National Visa Center of Department of State. The National Visa Center will send you a notice of receipt. The National Visa Center will send you another notice indicating when you should submit the immigrant visa processing fees and supporting documentation.
2. The Self-Evaluation Process for EB2 National Interest Waiver Petition
How to determine the eligibility for EB2 National Interest Waiver? or in other words, how to determine the eligibility for a waiver of Labor Certification? Some highly educated alien applicants have been denied the EB2 National Interest Waiver petition by USCIS due to ineligibility and insufficient documentation.
To avoid the unfavorable result for an EB2 National Interest Waiver application, the first step in the process is an self-evaluation of the alien applicant’s credentials, which includes the following factors for consideration:
1) Degree: For EB2 National Interest Waiver petition, the alien applicant should have a graduate degree, such as MS, PhD, or MD. Some alien applicants may have a PhD degree, and others may be in the process of earning a PhD degree. It is also possible for an applicant with a Master’s degree but has achieved outstanding achievements to get an EB2 National Interest Waiver petition approval.
2) Qualification: For EB2 National Interest Waiver application, it is critical that the alien applicant should have unique qualifications that cannot be claimed in a Labor Certification process. The alien applicant's qualifications can be established with recommendation letters or reference letters from experts in the field, to assert the alien’s unique qualifications, combine education, and experience. The alien qualification can also be established by citations of the applicant’s work or publications, service as a peer reviewer, and publication of articles in prestigious international journals and conferences.
3) Achievements: The alien applicant should have contributions of significance to the field. For researchers, the significant contributions to the field can be considered in the form of articles, presentations, and patents. Although the number of publications may be a factor in some fields, it is also possible for a researcher with only a few but influential articles to obtain the EB2 National Interest Waiver petition approval.
4) Influence on field: The alien applicant's influence on the field can be measured by the citations number of an applicant’s work and publications. Other evidence of influence on the field may include service as a reviewer for scientific journals, media reports of alien’s work, judge the work of others, prizes or awards, requests for applicant’s technical advice ,or reprints of the alien applicant’s articles or research results. The citations could be an important factor for some aliens working in the research for their EB2 NIW application process. But a small number of citations or even no citations does not necessarily mean that an alien applicant cannot get a National Interest Waiver application approval.
5) Work Importance: The importance of the alien applicant’s work requires that the alien’s field is important to the nation as a whole, and it cannot benefit one part of the country at the expense of another part of the United States.
3. The Questions Asked during Self-Evaluation Process for EB2 National Interest Waiver PetitionFirst, you need to answer there two questions:
- Is your field within the areas of sciences, arts, or business?
- Can you present evidence of at least 3 of the following?
- An advanced degree (Master or above) related to the area of exceptional ability;
- Evidence in the form of reference letters form employers or experts that you have at least two years experience in the area in which your work will benefit the United States;
- A license to practice in your field;
- Evidence that you have commanded a salary higher than others in your field;
- Membership in professional associations;
- Recognition for significant contributions to your field.
The USCIS also suggested that the following seven factors could be taken into consideration for NIW application:
- Improving the U.S. economy;
- Improving wages and working conditions of U.S. workers;
- Improving education and training programs for U.S. children and under-qualified workers;
- Improving health care;
- Providing more affordable housing for young and/or older, poorer U.S. residents;
- Improving the environment of the U.S. and making more productive use of natural resources;
- A request from an interested U.S. government agency or improving international cultural understanding
The above list is not exhaustive. The changes in the law have made it not easy for persons to qualify for the National Interest Waiver. As such, it is difficult to define exactly what qualifies a person for the National Interest Waiver or not. There are a few main questions that you should ask yourself when completing this evaluation:
- Do I possess unique knowledge, abilities or experience that set me apart from my peers?
- Will I, through the use of this knowledge, significantly benefit my field?
- Does my field have substantial merit and national importance?
- Will the benefit I bring to the U.S. be a national benefit?
- Will it be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification?
If you have answered Yes to most of these questions, you may qualify for the National Interest Waiver. We know that this can be confusing, and that it is difficult to grasp the many possibilities that are facing you. Just remember, when it comes to decide if you qualify for an EB-1A, EB-1B, or NIW, a honest and reasonable analysis is very helpful for your application.
4. EB2 National Interest Waiver (NIW) Petition for Aliens with Master degree and for PhD Students
Many aliens hope to apply for U.S. Green Cards in the EB2 National Interest Waiver (NIW) category, but they are not certain for their qualification, because they do not have PhD degree. Actually, in the EB2 National Interest Waiver regulation, the PhD degree is not a pre-requisite for EB2 NIW petition. Many people get their Green Card application in EB2 National Interest Waiver (NIW) category approved with Master degree.
For an alien applicant, if you can meet the basic requirements for EB2 National Interest Waiver petition, you do not need a PhD degree to file an EB2 National Interest Waiver application, such basic requirements including:
1) have an advanced degree above a Bachelor’s degree, such as a Master degree; or
2) have the equivalent to an advanced degree, such as a Bachelor degree plus 5 years of progressive work experience in the field;
3) meeting the requirements for exceptional ability and the Matter of Dhanasar's three-prong test.
Normally, EB2 National Interest Waiver petition is focused heavily on the alien applicant’s past achievements, contributions to the field, and reasonable projection of future benefits to the United States. Therefore, the USCIS' approval of an EB2 NIW petition does not focus on the alien applicant’s current position or PhD degree, thus an NIW petition's approval is possible for individuals with Master degree or for PhD students.
For EB2 National Interest Waiver petition, the alien applicant must have an advanced degree, and a Master’s degree is sufficient to meet the basic NIW requirements. Therefore, the alien applicant should provide evidence of the advanced degree, and other documentary evidence of past contributions and achievements in the field to meet the requirements of EB2 National Interest Waiver.
For many aliens with Master’s degree and PhD students, they are in the early stages of their career, and may not have many publications and citations. Then it is important for the alien applicant to obtain strong recommendation letters or reference letters detailing their significant work and contributions to the field.
5. The Alien Applicant Should Meet the Matter of Dhanasar Three-Prong Test for EB2 National Interest Waiver Petition
In Matter of Dhanasar that USCIS' Administrative Appeals Office (AAO) released on December 27, 2016, AAO created a precedential new test for a EB2 National Interest Waiver petition (EB2 NIW) in sustaining the appeal, and approved the national interest waiver petition.
In Matter of Dhanasar, the AAO held that the NYSDOT analysis caused much confusion, and had a tendency to lead to unnecessary subject evaluation. AAO held that it was vacating NYSDOT criteria, and adopting a new and clearer framework for adjudicating EB2 National Interest Waiver petitions, which is stated as:
Under the new framework in Matter of Dhanasar, after eligibility for EB-2 classification has been established, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of the evidence:
1) the foreign national’s proposed endeavor has both substantial merit and national importance;
2) the foreign national is well positioned to advance the proposed endeavor; and
3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.
As the USCIS adopted AAO decision for EB2 National Interest Waiver petition, the standard for the National Interest Waiver can be broken down into 3 prongs:
1) the foreign national’s proposed endeavor has both substantial merit and national importance: This prong for a EB2 National Interest Waiver application is applicable to many areas. To demonstrate that the alien applicant’s work is important, the petitioner should be able to clearly explain the benefits of the alien applicant's work. Most scientific and engineering disciplines can directly benefit society and people's life, and the reference letters and other supporting evidence should indicate the ways in which the alien applicant’s work benefits the society and with substantial merit and national importance.
2) the foreign national is well positioned to advance the proposed endeavor: After the petitioner showing that the alien applicant works in an area of substantial merit and and national importance, the petitioner needs to prove that the alien's work is well positioned to advance the proposed endeavor.
3) on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification: This is the difficult requirement to demonstrate in an EB2 National Interest Waiver petition, and the petitioner needs to prove that the alien applicant is capable of performing at a substantially higher level work. This is a subjective standard that requires skilful argument and appropriately worded recommendation letters and reference letters.
6. National Interest Waiver Application Requirements and Process for Evidence Collection and Strong Recommendation Letters
To establish that you are an exceptional alien whose permanent residence will be in the national interest of the United States, you should collect all the evidence to demonstrate that you are in a position that is in the U.S. national interest, and you contribute to U.S. to a much greater degree than an average U.S. citizen counterpart. To explain that your work is in the national interest of the United States, you need to collect and use all the related evidence such as government documents, public media, and internet website that will help you to establish how your work is related to or contribute to the U.S. national interest.
The reference letters or recommendation letters should be obtained from the alien applicant’s colleagues, supervisors, and independent sources that are familiar with the alien's work and published research results. These reference letters provide the context for the documentary evidence that will be submitted to USCIS. The reference letters or recommendation letters should explain the significance of the alien's work and various published articles on the scientific community, and the ways in which this research is relevant to the U.S. national interest.
These reference letters or recommendation letters can also be used to establish the quality of the alien applicant’s abilities that are superior to the peers. The independent reference letters or recommendation letters are important evidence, because they can be used to demonstrate that the alien applicant’s accomplishments have been recognized outside the alien's immediate circle.
You should provide recommendation letters or reference letters from experts within your field of specialization such as professors, researchers, and experts in government agencies. These recommendation letters should demonstrate that:
You seek employment in an area of substantial merit;
You possess unique knowledge, abilities, or experience which sets you apart from your professional peers;
You will utilize your unique talents in an activity significantly benefiting the field of specialization;
The proposed benefit will be national importance; and
Strong testimonials from experts in your field are key to a successful National Interest Waiver application. Therefore, you need a strong reference, not just an average one. At least three recommendation letters from the experts in your field are needed. Recommendation letters from experts outside your current employer carry more weight.
The EB2 National Interest Waiver petition should also include evidence of the alien applicant’s work and its influence on the field. The evidence is used to meet the requirements of the EB2 National Interest Waiver regulation, together with the reference letters or recommendation letters. The evidence may includes:
Copies of published articles authored or co-authored by the alien applicant;
A citations record of the alien's work by a search engine such as Web of Science;
Evidence of the alien applicant’s service as a peer reviewer;
Copies of relevant media reports.
7. The Suggested Strategies for EB2 National Interest Waiver Application
The suggested strategies for EB2 National Interest Waiver application include:
1) The EB2 National Interest Waiver applies only to aliens who will substantially benefit prospectively the national economy, cultural or educational interests or welfare of the United States. Alien applicants seeking qualification for a waiver of labor certification based on services considered in the national interest must prove prospective national benefit required of all aliens seeking qualification as exceptional.
2) National interest waiver applications require the overall value and potential of the alien beneficiary's individual contribution to the U.S., not only the fact that they are working in a field of high national interest. An alien applicant may qualify to be a key or critical member of a team, if the petitioner can show that the team function would be severely impaired without the alien as a member. Merely working in an area of national interest does not meet the national interest qualification requirement.
3) It is highly recommended the submission of reference letters from substantial, recognized national or international organizations, institutes, or government agencies with the expertise to say that the alien's contribution is truly in the U.S. national interest. The authors of these third-party reference letters should clearly state how they came to be familiar with the alien's work.
Additional EB2 National Interest Waiver application Requirements for USCIS adjudication include:
- Submit evidence that you seek employment in an area of substantial merit. Your employment must be important to the national interests of the U.S. Additionally, the benefits of your employment should be immediately apparent to the national interests of the U.S.
- Submit evidence related to your ability to perform the duties of the proposed employment position. To be considered in the national interest, you should be significantly above that necessary to prove the "prospective national benefit" required of all aliens seeking to qualify as "exceptional." Exceptional is defined under the USCIS regulations as "a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business."
- You should establish that you are not seeking a national interest waiver based on a shortage of qualified workers in a given field, regardless of the nature of the occupation. The NIW is not warranted solely for the purpose of ameliorating a local labor shortage.
- If you demonstrate that you hold a patent or are responsible for an innovation, then you must demonstrate that the specific innovation serves the national interest.
- You should establish that you have a past record of specific prior achievement which justifies projections of future benefit to the national interest. You should establish, in some capacity, your ability to serve the national interest to a substantially greater extent than a majority of your colleagues. You should demonstrate to some degree, your influence on your field of employment as a whole.
These standards are not codified, but represent the current standards by which the USCIS is adjudicating the NIW applications.
8. Provide the Citations with the NIW Application, for Some Applicants Working in Science and Engineering Fields
For USCIS to determine the number of citations that you received, you should clarify the number of citations that you received regarding your work, such as:
1) how many overall citations that you have received?
2) of these citations, how many citations were for articles that you are the first-author?
3) how many were independent citations, and how many were cited by yourself?
You should also explain how you have significantly impacted your field. As a researcher, you should provide evidence to prove that you are not simply conducted research within your field, but have made some important discoveries.
9. How to Submit Evidence to Present a Strong Case that an Alien Applicant Is Considered Having Exceptional Ability
According to USCIS, the following evidence may present a strong case that an alien applicant is considered exceptional:
1) presentations at academic symposia;
2) published articles in scholarly journals;
3) testimony from other experts on the alien's contribution to the field;
4) a number of entries in a citation index citing the aliens work; or
5) participation by the alien applicant to judge the work of other professionals.
All non-English language documents must have an English translation for the pertinent parts of the documents that help to establish eligibility. If you would like USCIS to consider evidence that is written in a foreign language, you must submit English language translation for the parts of the document that could help to establish eligibility for the requested benefit. The translator must certify that:
- The translation are accurate and complete, and
- The translator is competent to translate from the foreign language into English.
USCIS looks for realistic evidence of substantial prospective benefit to U.S. National Interest, which specifically sets the alien apart from others in the field. USCIS has received some petitions and claims from graduate students who have done little work outside the requirements to complete their degree, or have not had enough time or experience as a researcher or engineer in order to qualify for EB2 NIW category. Often the claims in these petitions are made that their area of research is so potentially cutting edge or so significant that it must be in the U.S. national interest. In accordance with the EB2 National Interest Waiver criteria, it is difficult for these graduate students to qualify EB2 NIW category, and it is not designed for all graduate researchers to qualify.
10. How to Effectively Organize the Evidence Accompanied with Form I-140 Petition based on NIW
When accompanied with reference letters, USCIS examiner's time will be saved and returns for Request For Evidence (RFE) notice will be reduced if focused on the alien beneficiary's documents. You should place the petition cover letter with the reference letters and testimonial evidence at the front directly beneath the Form I-140, to eliminate the USCIS examiner's time spending on wading through academics articles or general reports, which often add minimal weight to bolster the claim for specific achievements or individual potential.
Follow the tips below for how to organize the evidence:
1) Provide all required documentation and evidence with the petition when filed. Form I-140 petitions may be denied without issuing a Request For Evidence (RFE) in the instances where the required evidence described in the instructions and regulations are not initially provided. If providing photocopies of documents, provide clear legible copies.
2) All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a translator who is competent to translate and must verify in writing that “the translation is true and accurate to the best of the translator's abilities.“ It is helpful if the English translation is stapled to the foreign language document.
3) If documenting the alien's publications or citations of the alien beneficiary's work, highlight the alien's name in the relevant articles. It is not necessary to send the full copy of a dissertation, thesis, or research paper written by the alien beneficiary, or one in which the alien beneficiary's work has been cited. Include the title page and the portions that cite the alien's work.
4) Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.
When making a final decision regarding NIW eligibility, USCIS will first evaluate the evidence submitted by the petitioner to determine which regulatory criteria the beneficiary meets in Part One of the analysis. If the petitioner establishes that the beneficiary has met the NIW criteria, then USCIS will evaluate all of he evidence in the record to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the a preponderance has the acclaim of U.S. national interest , and that the beneficiary ‘s achievements have been recognized in the field of expertise.
This is the petitioner’s responsibility to meet the legal burden of proof to establish eligibility in all respects. Whenever a alien applicant makes an application for an immigrant benefit, the petitioner shall bear the burden of proof to establish eligibility for the benefit sought. Therefore, the petitioner must prove, by the preponderance of the evidence, that the beneficiary is fully qualified for the benefit sought.
11. Complete Do-It-Yourself Package for EB2 National Interest Waiver (NIW) Petition
The burden of NIW petition approval rests on the petitioner. The petitioner should provide substantial evidence to support the EB2 National Interest Waiver Petition. If the alien applicant is qualified, then the success depends largely on the way the application is presented to USCIS.
To help you obtain U.S. Green Card easily and quickly, we provide the high quality and case-proven Complete Do-It-Yourself Package for EB2 National Interest Waiver Application, based on our extensive and practical employment immigration experience.
As added value in the Complete Do-It-Yourself Package for EB2 National Interest Waiver Application, we provide comprehensive instructions on U.S. immigration application requirements and processing, and we also provide you the methods of how to prepare the NIW application, how to collect evidence, how to show your achievements, how to prove your exceptional ability, and how to write the application cover letter and the reference letters.
We also provide step-by-step procedures for the National Interest Waiver application, various application strategies, detailed sample cover letter, detailed sample reference letters in different formats and academic fields, sample of filled forms, complete application check list, application required forms, and more.
12. The Request for Evidence (RFE) Notice, and Responding to an Request for Evidence
When USCIS (U.S. Citizenship and Immigration Services) needs more information to proceed an immigration application, it will issue the petitioner a Request for Evidence (RFE) notice. The petitioner should respond to the RFE within the timeframe indicated in the RFE notice, usually 30 to 90 days, so that the USCIS immigration official adjudicating the immigration case will have enough evidence to make a decision.
If you receive an RFE notice from USCIS, you should not panic. It does not mean that the denial of your application is inevitable, it only mean that USCIS needs more information from the petitioner, in order to make a right decision. USCIS also has the power to deny an immigration application without first issuing Request for Evidence, so the petitioner should be thankful for the opportunity to correct information, provide more documentation and evidence, and convince the USCIS immigration official to approve your immigration petition.
The petitioner should return the RFE response before the deadline given by USCIS. If you fail to respond the RFE notice, USCIS will either determine that you abandoned your immigration application and issue a denial, or it will make an ultimate decision on the case without the information that it requested, most likely resulting in a denial.
Therefore, it is important that you change your address with USCIS if you move, or make arrangements for your mail to be forwarded to you if you travel extensively. If USCIS sends you a RFE, you don’t want to miss it.
13. The Potential RFE Request for an EB2 National Interest Waiver Petition
To process the Form I-140 petition and determine the eligibility for EB2 National Interest Waiver petition, additional information may be required by USCIS. The Request For Evidence notice provides suggested evidence that could be submitted in consideration of each requested item. The petitioner should provide additional evidence that is believed to satisfy the request. The petitioner is responsible for providing that best shows that the NIW beneficiary meets all requirements. Evidence must show that the beneficiary was eligible for the requested benefit when the Form I-140 petition was filed.
A Request for Evidence (RFE) from a USCIS Service Center is that the USCIS adjudicator is requesting additional evidence to address and support specific parts of the pending I-140 petition. The petitioner may have certain days indicated in the RFE notice to respond the requests in the RFE notice. If the petitioner does not respond within the indicated time, the petition may be denied by USCIS. After USCIS receives the response to an RFE notice, further action will generally occur within 60 days, but may take longer for some cases.
When an USCIS officer is unable to complete the processing of your application without further information, the USCIS will issue the Request For Evidence. You should read and comply with the RFE request carefully, then submit the evidence to the address listed on the RFE notice. Include a copy of the RFE notice, and place the attached gold sheet on top of your documents.
You must submit the requested information before the deadline indicated in the RFE. Failure to do so may result in the denial of your application. The deadline reflects the maximum period for responding to a RFE. However, since many immigration benefits are time sensitive, you are encouraged to response to RFE request as early as possible, but no later than the date provided on the request.
To help you replying the RFE for your EB2 National Interest Waiver Petition, we provide the high quality and case-proven "Complete Do-It-Yourself Package of Request For Evidence (RFE), EB2-National Interest Waiver Petition." In the RFE package, we present methods of analyzing RFE questions, RFE replying strategies, means of strengthening your case, detailed RFE cases analysis, sample cover letters, sample reference letters, and more.
With the RFE package, you get all the information you need and step-by-step knowledge and strategies of how to prepare an efficient, professional, and complete response to your RFE notice of EB-1A petition, and eventually get your Green Card. Please also visit "How to Prepare a Successful RFE Response for Your EB2 National Interest Waiver Application"
A Notice of Intent to Deny (NOID) is that the USCIS adjudicator is giving notice that USCIS will deny the pending case, unless you provide certain extra documentation. The petitioner may have certain days indicated in the NOID notice to respond. If the petitioner does not respond within the prescribed period, the petition may be denied. Once the USCIS receives your response to an NOID, further action will generally occur within 60 days, but may take longer.
If your EB2 National Interest Waiver petition is denied by USCIS, you can file a NIW petition again, or file in other categories. The immigration law does not restrict the time you can file an NIW petition again after the rejection of your previous NIW application. A previous rejected NIW petition does not bar you from submitting another NIW petition again subsequently, and regardless which immigrant classification is concerned. However, unless your situation has improved, it is not advisable for you to simply submit a similar petition again, because it is unlikely your case will be approved by USCIS.
14. Our Premium Petition Service Program for EB1 and EB2 NIW petitions
We provide the “Premium Petition Service Program” for EB1 and EB2 NIW petitions (http://www.greencardapply.com/general/premium.htm). Here, we provide an NIW petition example, in which the alient alpplicant used our Premium Petition Service Program to get National Interest Waive petition approval.
The EB2 National Interest Waiver (NIW) pettition enable outstanding aliens to live and work permanently in the United States, sharing their talents and expertise for the benefit of the United States. One of the features of NIW is that it allows for self-petitioning. While the EB2 National Interest Waiver can be filed by an employer, there can be advantages to self-petitioning.
In this case, the alien applicant received an NIW petition approval, and he conducts important work in the field of Alzheimer's Disease Research. He has produced groundbreaking research in the areas of progressive neurological disease, brain's inability to function, frontotemporal dementia, and Huntington's disease. As Alzheimer's disease is one of the top killers in the United States, his research is undoubtedly of substantial merit to U.S.
As a client of our “Premium Petition Service Program”, we helped him to prepare and provide evidence that this research has been funded by the National Institutes of Health (NIH), which is further proof that his work is of national importance. We also helped the alien applicant to submitte reference letters from hospitals and universities located throughout the United States and the world. The reference letters, including those from several independent experts, state that the alien applicant's past work is indispensable, and his future work would be detrimental to the field and to U.S.
The alien applicant is also a member of several field-related organizations, including the American Alzheimer Association, and American Brain Tumor Association. The petitioner has authored 17 publications, including journal articles and conference proceedings. He is first author on 9 articles, and his research has been presented at several international conferences. His research has been cited more than 70 times by other researchers in the field.
15. The Motion to Reopen or Motion to Reconsider after Form I-140 Immigrant Visa Application Denial
Motion to Reopen is a request to the original decision officer of USCIS to review a decision of the immigrant petition. The motion must be based on factual grounds, such as the discovery of new evidence or changed circumstances.If your Form I-140 immigrant petition was denied by USCIS due to a Request For Evidence (RFE) or a Notice of Intent to Deny, you can file a motion to reopen if you can show that:
As another choice, you can also file a "Motion to Reconsider." A motion to reconsider is a request to the original decision officer of USCIS to review a decision based on new or additional legal arguments. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision, and it must state the reasons for reconsideration.
- The requested evidence was not material;
- The required initial evidence was submitted with the petition;
- The request for appearance or additional evidence was complied with during the allotted period, or
- The request for evidence or appearance was not sent to the address of record.
A motion to reconsider must be supported by “any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or USCIS policy.” Unlike a motion to reopen, new evidence or changed circumstances cannot support the filing of a motion to reconsider.
16. The Alien Registration Number, Immigrant Visa Number, and Form I-485 Application Process for U.S. Permanent Residence
An alien applicant should receive a A# (or A Number) from USCIS after your Form I-140 immigrant visa application approval. The A Number is the Alien Registration Number. The “A” number is used by the Department of Homeland Security and USCIS for the purpose of identifying aliens. It alone does not serve as employment authorization nor is it evidence of legal status or permanent residency. After your I-140 approval, you will be given an A number by USCIS.
Aliens are also often confused Social Security Numbers (SSN) with alien registration numbers (or “A” number) issued by the Department of Homeland Security. An alien is issued an “A” number when he or she is applying for immigration, is put under removal proceedings, or under other special alien registration programs. The formal “A” number contains eight digits and will occasionally begin with a “0” and have a total of 10 digits. In general, one may only have one formal “A” number. In multiple applications cases, however, an alien may receive multiple “A” numbers.
The EB-2 National Interest Waiver petition process begins with the filing of USCIS Form I-140, Immigrant Petition for Prospective Alien Worker, by the alien applicant or a U.S. employer. The processing time for Form I-140 petitions varies, and it can be several weeks or several months.
1) If the alien applicant is in U.S. already and an immigrant visa number for EB-2 priority workers is immediately available at the time that the Form I-140 petition is filed, the alien applicant can file a concurrent Form I-485 Application to adjust status in the United States. At the same time of Form I-485 filing, the alien applicant can also file Form I-765 Application for Employment Authorization, and Form I-131 Application for Travel Document (Advance Parole), together with Form I485 filing.
2) If the alien applicant is in U.S. but an immigrant visa number for EB-2 priority workers is not immediately available at the time of the Form I-140 filing, the alien applicant should maintain a valid nonimmigrant status, such as H-1B, L1, or even J1. After the alien's priority date becomes "current", and therefore an immigrant visa number for EB-2 priority workers is immediately available, the alien applicant can then file the Form I-485 Application to adjust status in United States, and also file the Form I-765 Application for Employment Authorization, and the Form I-131 Application for Travel Document (Advance Parole).
3) The Visa Bulletin is generally published around the middle of the preceding month. The Visa Bulletin reflects available visa numbers for cases with priority dates before the listed dates. To check the current Visa Bulletin, please visit http://travel.state.gov/content/visas/english/law-and-policy/bulletin.html
During the process of Form I-485 application for U.S. permanent residence. The USCIS has authority to conduct an interview of the alien applicant, but they can also waive the interview requirement. After the Form I-485 approval, the alien applicant's immigration status is adjusted to lawful U.S. permanent resident.
Because the USCIS is subjective in its EB2 NIW adjudication process, an EB2 NIW petitioner should be prepared to know how to respond the Request For Evidence (RFE) request from the USCIS Service Center for additional evidence, or even be prepared to know how to appeal a NIW denial decision from the USCIS Service Center.
In case of a NIW petition denial, there is a standard procedure to appeal the USCIS Service Center's decision. The appeal should be submitted to the USCIS Service Center rendering the decision, and the petitioner must wait until final decision on is made by the USCIS Administrative Appeals Office (AAO) in Washington, DC. Instead of an appeal, the alien applicant can also choose to submit an EB2 NIW petition again, or apply for other immigrant visa category.
After the Form I-140 petition approval, if the the alien applicant is outside the U.S., the alien applicant can apply for an immigrant visa at a U.S. embassy or consulate during the "Consular Processing", if an immigrant visa number has become immediately available for the EB-2 category.
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