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Frequently Asked Questions and
Answers for EB2 National Interest Waiver Petition

                            NIW questions and answers graphic

Q: What is the Definition of National Interest Waiver?

A: The National Interest Waiver, or NIW, is an employment based second preference petition. It is so named because it asks that the otherwise required Labor Certification requirement be waived "in the U.S. National Interest." Thus, a beneficiary of a successful National Interest Waiver petition is exempt from the requirement that his or her employer first obtain a Labor Certification from the U.S. Department of Labor.

A person may qualify for the waiver of the Labor Certification or job offer requirement if they can show that their work will be in the national interest of the United States. This benefit is popularly called the National Interest Waiver. The burden of proof in National Interest Waiver cases rests solely with the petitioner. 

Q: What is the EB2 Immigrant Visa Category?

A: The Employment-Based Second Preference visa category (EB2) includes:

1) Members of the professions holding advanced degrees or their equivalent, and

2) Individuals will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services are sought by an employer in the United States, because of their exceptional ability in the sciences, arts, or business.

Q: Does anyone with an advanced degree qualify for an EB2 immigrant visa?

A: Not every individual with an advanced degree will qualify an EB-2 immigrant visa. The alien applicant must demonstrate that the occupation is a profession. 

The term “profession” is defined as an occupation for which a U.S. Bachelor degree or its equivalent is the minimum requirement for entry into the occupation. These occupations may include architects, engineers, lawyers, physicians, surgeons, and teachers.

Q: Who may qualify for 'National Interest Waiver'?

A: A person qualifies for this benefit if he or she falls within the second preference employment based category, namely a person in the professions who either holds an advanced degree or is considered possessing exceptional ability in the sciences, business or arts.

While the U.S. Citizenship and Immigration Services (USCIS) has not established specific criteria for approving National Interest Waiver petitions, many examiners rely on a decision in a case decided years ago. In that case, the USCIS Administrative Appeals Office (AAO) suggested that the following seven factors could be taken into consideration:

1. improving the U.S. economy;
2. improving wages and working conditions of U.S. workers;
3. improving education and training programs for U.S. children and under-qualified workers;
4. improving health care;
5. providing more affordable housing for young and/or older, poorer U.S. residents;
6. improving the environment of the U.S. and making more productive use of natural resources;
7. a request from an interested U.S. government agency or improving international cultural understanding

Q: Which fields have the greatest chance of success for the NIW?

A: There is no such thing as the "greatest chance." It all depends upon the individual case. EB2 National Interest Waiver's have been granted to mathematicians, physics researchers, environmental scientists, artists, civil engineers, geologists, physicians, agricultural economists, musical composers, trade experts, electrical engineers, programmers/analysts, semiconductor engineers, biomedical engineers, environmental geologists, transportation engineers, chemistry researchers, nutrition counselors, cancer research associates, biomedical researchers, medical physicists, medical laboratory associates, dance instructors etc.

Although the USCIS states that it will be flexible in determining who qualifies for the National Interest Waiver, it sometimes uses more stringent standards when deciding cases filed for people in the business and art than for people in the science and engineering.

Q: What is the most important part of the EB2 National Interest Waiver petition?

A: Without a doubt, advocacy is the single most important part of a National Interest Waiver petition. In this case, advocacy means the way the law and facts are argued in support of the petition. A very large number of meritorious cases have been rejected because of poor advocacy and a very large number of marginal cases have been approved because of good advocacy.

Since the USCIS has not created any checklists (as is the case for EB1 Extraordinary Ability and EB1 Outstanding Researchers or Professors), an USCIS examiner must be persuaded that the case has merit. If the argument is too long and boring, the examiner will lose interest before understanding the merits of the case. If the argument is too short and unconvincing, the examiner will not be persuaded. A successful case strikes the right balance between sufficient detail and argument to establish eligibility, without unnecessary repetition or the inclusion of irrelevant facts or arguments. More than any other types of cases, EB2 National Interest Waiver petitions are won or lost on the strength of the arguments presented.

Q. What type of work can be considered as in National Interest? Does it have to be research? 

A: For your work to be considered as in U.S. National Interest, the key issue here is how to collect evidence to prove your work is in National Interest. It does not have to be research, and it can be technology development, or management also. It is a common understanding, however, that scientific research and technology development keeps U.S. economy strong.

Q: What is the difference between an EB2 National Interest Waiver and an EB-1? 

A: While there are many similarities between an alien who qualifies for an EB2 National Interest Waiver petition and an EB1A or EB1B petition, the qualifications for each of the different petitions is actually distinct. In an NIW petition, the alien seeks first to show that he or she is a highly qualified individual in a field, and also claims to have the capacity to contribute to the U.S. national interest to a greater degree than other highly qualified individuals in the field, thus warranting the waiver of the standard job offer and Labor Certification requirement. 

By contrast, a person who qualifies in an EB-1 category must show that he or she is a top or outstanding individual in a field. According to U.S. immigration law, a top or outstanding individual is not required to get a Labor Certification to achieve employment based permanent residency.

Q: Between an NIW and an EB-1, which petition is recommended? What form should I file to seek the National Interest Waiver?

A: You should always keep in mind that filing both EB2 National Interest Waiver and EB-1 petition concurrently is an option. If your case is clearly strong, your chances for success are higher by applying for EB1-Extraordinary Ability. However, if your case is not as distinguished as successful EB1-Extraordinary Ability case, a NIW petition would be the most sensible approach. 

The NIW petition consists of form I-140 - Immigrant Worker Petition. There are no other specified materials that are required by the USCIS regulations for a NIW petition. The remainder of the petition will depend upon whether the beneficiary is an "advanced degree professional" and an "exceptional ability alien." In addition, the petitioner has to show that the work to be done by the beneficiary will advance the national interest of the United States.

Q: Why the EB2 National Interest Waiver petition is an attractive immigration category?

A: For many foreign nationals, the EB2 National Interest Waiver is an attractive immigration category, because it also allows self petition without U.S. employer's sponsorship and even a job offer. No U.S. employer's sponsorship is required for NIW petition, thus an alien immigrant can self-petition the EB2 NIW with the USCIS.

Evidence must be submitted to support a Form I-140 petition for EB2 National Interest Waiver. Unlike the requirement for EB1 Outstanding Professor or Researcher Petition, in which an alien applicant must demonstrate that the alien is recognized internationally as outstanding in the academic field, or the the requirement for EB1 Extraordinary Ability, in which an alien applicant must have garnered "sustained national or international acclaim in the field of endeavor", the applicant for NIW is only required to be in an area of substantial intrinsic merit, and the applicant's work should benefit the U.S. national interest.

Q: Do you think that EB2 National Interest Waiver petition is easier than that of EB1 Extraordinary Ability petition?

A: The requirements for EB1 Extraordinary Ability and EB2 National Interest Waiver petition are different. Therefore, the application documents and their preparation are significantly different between these two immigrant visa categories. But for both EB-1A and EB2 National Interest Waiver petitions, the alien applicant can file self-petition without the need of an U.S. employer as a sponsor. 

Both EB1 Aliens with Extraordinary Ability petition and EB2 National Interest Waiver petition do not require a job offer from a U.S. employer. Thus, both petitions can be self-filed without an U.S. employer as a sponsor. To file an EB-1A petition for alien with extraordinary ability, an alien applicant needs to prove that he or she has “extraordinary ability” in a field, which normally requires greater achievement and ability in a field than the the "exceptional ability" required for an EB2 National Interest Waiver petition. The regulation requirements for a NIW petition is lower than that for an EB-1A petition.

Also, for EB1 Extraordinary Ability applicants, the applicants need to show a major internationally recognized award, or documentation from at least three of ten criteria. But for EB2 National Interest Waiver petition, the alien applicants are required to show that they are in an area of substantial intrinsic merit, and the applicant's work should benefit the U.S. national interest.

Q: What is the real difference between NIW and EB1-A (alien of extraordinary ability) applications?

A: The regulation requirements in EB2 National Interest Waiver (NIW) and EB1 Extraordinary Ability (EB-1A) are quite different, and thus the application preparation is significantly different between the NIW and EB-1A applications. For example, a successful NIW application does not require the alien applicant to "risen to the very top of the field," as required by EB1 Extraordinary Ability application. 

Also, it is possible for some alien applicants to file two petitions such as an NIW and a EB-1A at the same time. There is nothing stated in the law that prohibits multiple filings of immigration visas. Actually, multiple filings may increase the chance of the immigrant visa approval.

After the Form I-140 is approved by USCIS, there is no major difference between the EB2 National Interest Waiver and EB1 Extraordinary Ability classifications for the FormI-485 application to adjust the status later.

Q: What is the major difference between the EB2 National Interest Waiver petition and the EB1 Outstanding Professors and Researchers petition?

A: The EB2 National Interest Waiver petition does not require a job offer, but the EB1 Outstanding Professors and Researchers Petition requires a job offer. Thus, the EB1 Outstanding Professors and Researchers petition cannot be self-filed without an U.S. employer as a sponsor. Therefore, the EB1 Outstanding Professors and Researchers petitions must be accompanied by a job offer from a U.S. employer.

Q: What supporting documentation must be submitted to demonstrate the national interest?

A: Most of the successful petitions are documented by:

  • Evidence such as a letter from an interested U.S. Government agency;
  • Evidence showing that the alien's work is funded by the U.S. Government; and/or 
  • Letters from distinguished scientists/ professors in the field attesting to the importance of the research. 

Cases involving health related research, defense related research, or energy related research have the greatest success rate.

Q. What is a recommendation letter? How many recommendation letters are enough to prove that I am qualify for the National Interest Waiver?

A: The recommendation letter or reference letter is a letter written by an expert in the alien's field or some otherwise authoritative person in an allied or supported field. The letter discusses the abilities and accomplishments of the alien seeking an EB2 National Interest Waiver. The recommendation letters are an important part of a NIW petition. 

Certainly, the more recommendation letters you have, the stronger evidences you may present. The quality of your recommendation letters also counts. You should ask someone that has certain credentials to write a recommendation for you. Those credentials include university professors, job supervisors with certain education background or high-level titles, ranked governmental officials, and scientists or engineers with doctorate degrees. Generally, three or four strong recommendation letters would be enough to present a case. Remember, a recommendation letter is not the sole evidence to prove your work is in national interest.

Q: Can Letters of Recommendation included in an EB-1 petition be used for an EB2 National Interest Waiver petition? If I have filed an EB-1, when is my priority date? 

A: The Letters of Recommendation included in an EB-1 petition should not be used for an EB2 National Interest Waiver petition. EB-1 Letters of Recommendation will not be effective for a NIW petition, since the EB-1 and NIW have different criteria. 

If you have filed a NIW petition, your priority date is the date that the USCIS receives your NIW petition. 

Q: Who should file the petition in a National Interest Waiver case? If I have a choice between filing a NIW and filing an Outstanding Professor/Researcher petition, which petition should I choose? 

A: The EB2 National Interest Waiver petition can be filed either by an alien, by his/her employer, or by anyone acting as a representative for the alien. 

If you meet both criteria of EB2 National Interest Waiver and EB1 Outstanding Professor/Researcher petition, generally we recommend that you file for a NIW petition if you do not want to bind you to any particular employer and which you may file on your own behalf. 

An Outstanding Professor/Researcher petition, however, requires a job offer from an employer. In addition, a change of employer while your petition is pending may terminate your Outstanding Professor/Researcher petition. Your particular situation may differ depending on your specific facts and circumstances. 

Q: What are the general requirements for an NIW application?

A: For an NIW application, the alien applicant's work should be in an area of substantial intrinsic merit, and the applicant's work should benefit the national interest. Also, the applicant should establish the National Interest would be adversely affected if a Labor Certification was required. The application should also establish that the beneficiary's work has significantly impacted his or her filed of study.

The application documents should explain what the applicant has done above and beyond performing the routine. The applicant should also have made a significant impact within the field, and is different from his or her peers who have performed similar work.

Q: I am an researcher and have several published papers. How to provide the citations in my EB2 National Interest Waiver application?

A: 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.

Q: For an National Interest Waiver application, how to prove that my work has "Substantial Intrinsic Merit"?

A: For an National Interest Waiver application, you should establish that your proposed employment has substantial intrinsic merit. The evidence should show that your proposed employment is of substantial intrinsic merit. Your evidence might show that your field of endeavor may:

  • Benefit the U.S. economy;
  • Improve wages and working conditions of U.S. workers;
  • Improve educations;
  • Provide more affordable housing;
  • Improve the environment of the U.S.;
  • Make more productive use of natural resources, or
  • Serve the interests of a U.S. government agency;

Q: For my National Interest Waiver application, How could I "demonstrate that the national interest would be adversely affected if a labor certification were required"? 

A: For an National Interest Waiver application, you should establish that the national interest would not be served if you were required to obtain a labor certification for the proposed employment. You should submit any evidence to establish that the national interest would be affected if you were required to go through the labor certification process. You should demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of your service by making the position available to U.S. workers. 

Therefore, you can submit evidence to establish that your past record justifies projections of further benefit to the nation. Your evidence should show that you have influenced the field by acquiring the necessary knowledge or exceptional skills. You should establish that you have a past record of specific prior achievement with some degree of influence on the field as a whole.

Q: For my EB2 National Interest Waiver application, how to establish that "your proposed employment is national in scope"? 

A: For NIW application, you should establish that your proposed employment is national in scope. You submitted evidence should show that your work will bring benefits to the United States and that the benefits are national in scope, and you should submit evidence that your contributions will impart national-level benefits. Also, you should establish that your ability to serve that national interest to substantially greater extent than the majority of others in the field. For example, you may submit:

  • copies of your patents and copyrights; 
  • grant proposals; 
  • peer reviewed articles; 
  • performance evaluations for the last five to ten years; 
  • work that has been evaluated in independent journals; and 
  • awards for work in the field. 

Any awards for work in the field must be accompanied by a statement form the institution that granted the award, commenting on the number of awards given, the frequency of the awards, the criteria for granting the award, and the number of individuals eligible to compete for the award.

Q: What type of job offer is required? What if I change jobs while my EB2 National Interest Waiver petition is pending? 

A: Technically, no job offer is required for an EB2 National Interest Waiver petition. For this reason, it is possible for intending immigrants to self-petition. The way the statute is drafted, it is the job offer that is waived. Because the job offer is waived, the individual Labor Certification requirement is also waived. Realistically, however, a person seeking an NIW must offer persuasive evidence that he or she will be engaged in work that will benefit the national interest of the United States. The easiest way to do this is with a specific job offer, which clearly describes the work that will be done.

If you change jobs while your NIW petition is pending, it will have no effect upon the status of your case. The EB2 National Interest Waiver can be self-petitioned and does not require a job offer. Therefore, you may change your employment and it will have no effect on your case, as long as you stay within your field of expertise. 

Q. I am full-time employed by a company. I like to file an immigration petition. What kind of document should my company provide? Also, if I have a Labor Certification application pending, may I also apply for a NIW? 

A: Your company should provide an employment offer letter which indicates your position type, job title, and compensation rate. Generally, if your company has less than 100 employee total, an earning statement of the company may also required.

If you have a Labor Certification application pending, you may also apply for a NIW. A Labor Certification process is done by the U.S. Department of Labor, whereas the USCIS handles the NIW petitions. If your Labor Certification is ultimately denied, then you still have a chance of getting an NIW approved. Either way, you need to petition for an adjustment of status of Form I-1485.

Q: If I have been denied a Labor Certification, may I still petition for an EB2 National Interest Waiver? 

A: Yes, assuming you would otherwise qualify for an EB2 National Interest Waiver. The standards for an EB2 National Interest Waiver petition and a Labor Certification are very different. A Labor Certification is based on a lack of available U.S. workers with minimum qualifications for the particular job. By contrast, a NIW is based on proving that the alien's work is in U.S. national interest and his/her accomplishments have been exceptional which places the alien in the priority worker classification, bypassing the need for a Labor Certification. 

Q. What kind of degree is required to file for National Interest Waiver? Will a person with only a B.S. degree qualify?

A: The law requires that the alien has 

1) a U.S. advanced degree or an equivalent foreign degree, or 

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

Q: Does an applicant need to receive his PhD and a job offer in order to apply for PR (Permanent Residence)? Can I file both an EB1 Extraordinary Ability and a NIW petition at the same time? 

A: You do not need to receive a PhD or a job offer in order to apply for U.S. Permanent Residence, and you can apply under either EB2 National Interest Waiver or EB1 Extraordinary Ability, even while you are still in a degree program. There are many successful cases of PhD students obtaining their Green Cards in the NIW category. 

You can file both an EB1 Extraordinary Ability and an EB2 National Interest Waiver petition at the same time. Many of our customers choose to file both petitions simultaneously. Often, one petition will be approved earlier than the other will. In addition, if one petition is denied for some reason, there is still a chance that the other petition may be approved. 

Q: I am a PhD candidate, can I apply for U.S. Green Card under the National Interest Waiver? How many publications are sufficient to meet the NIW requirements? 

A: For the National Interest Waiver petition, the law only demands an advanced degree or bachelor's degree plus five years of work experience as the basic qualification. The important part is to show your work benefits this country. Since the law does not exclude PhD candidates, certainly such candidates can apply as long as he or she meets the requirements. 

There is no specific minimum publication requirement for an EB2 National Interest Waiver petition; rather, it is determined by USCIS on a case-by-case basis.

Q: What is the advantage of applying for NIW over EB1 Outstanding Researcher or Professor? If I am not a member of any professional association or society in my field, may I still apply for a NIW? 

A: The biggest advantage is that applying under EB2 National Interest Waiver does not require a permanent job offer and employer's sponsorship, whereas applying under EB1 Outstanding Researcher or Professor requires both a permanent job offer and employer's sponsorship.

If you are not a member of any professional association or society in your field, you still  can apply for a NIW. There is no specific requirement that you must be a member of any professional association, organization, or society in order to apply or obtain approval of an EB2 National Interest Waiver petition, although in many instances such memberships would help improve chances of approval.

Q: Can I file the petition of EB1 Extraordinary Ability and EB2 National Interest Waiver at the same time?

A: There is no rules in the law to prohibits multiple filings of immigrant visa application. It is possible to file an EB1 Extraordinary Ability petition and a EB2 National Interest Waiver petition at the same time, or file an EB-1B and a NIW petition at the same time. Many aliens file two Form I-140 petitions concurrently in EB-1A and NIW (or EB-1B and NIW) to increase their approval chances.

To file EB1-A and NIW concurrently, you can file them by yourself, or you can ask your employer as your sponsor, to file a separate Form I-140 petition for EB-1A and NIW, with the required application fee and supporting documents for each immigrant visa category. Also, the applicant should be careful not to check multiple categories on one I-140 Form.

Q: I may not qualify for EB1 Alien of Extraordinary Ability or EB1 Outstanding Researcher/Professor? Can I file EB2 National Interest Waiver petition

A: If you believe that you may not qualify for EB1 Alien of Extraordinary Ability or EB1 Outstanding Researcher or Professor, but you want to file your immigrant visa application under the EB2 category, you may consider the EB2 National Interest Waiver (NIW).

For many foreign nationals, the EB1 Extraordinary Ability and EB1 Outstanding Researcher or Professor are attractive immigration categories, because the immigrant visas are current for everyone in the EB1 categories, and the EB-1A also allows self petition without U.S. employer's sponsorship and even job offer. However, the EB1 Extraordinary Ability category has the higher standard which requires the alien applicants to "rise to the very top of the field.", and EB1 Outstanding Researcher or Professor requires a "permanent" research or teaching job offer from a U.S. employer.

For many alien applicants, and also for people whose academic achievements are not quite sufficient for EB-1 applications, the EB2 National Interest Waiver category is a good choice. The regulation standards for EB2 National Interest Waiver petition are somewhat lower than that of EB-1A and EB-1B, and it only requires the "exceptional ability" for NIW.

Q: How should I organize the evidence with the EB2 National Interest Waiver petition?

A: Follow the tips below for how to organize your evidence with the EB2 National Interest Waiver petition:

1) Provide all required documentation and evidence with the Form I-140 petition. The petitioner should know that the Form I-140 petitions may be denied by USCIS adjudicators without even issuing a Request For Evidence (RFE) notice, if the required evidence described in the instructions and regulations are not provided initially.

2) All foreign language documents should 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 submitting the alien beneficiary's publications or citations, highlight the alien beneficiary's 's name in the articles. It is not necessary to send USCIS the full copy of a dissertation, thesis, research paper, or the paper in which the alien beneficiary's work has been cited. Just include the title page and the portion that cite the alien's work.

4) Tab and label the evidentiary exhibits, and provide a list of the evidentiary exhibits. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.

Q: What is the USCIS' "Two-Part Evaluation Approach" for National Interest Waiver petition?

A: The USCIS' Two-Part Evaluation approach adjudication method applies to EB2 National Interest Waiver Petition. The evidence listed in the NIW regulations serve only as guidelines for the petitioner. Eventually, the submitted evidence should establish that the "proposed benefit will be national in scope", and the "national interest would be adversely affected if a Labor Certification were required."

USCIS adjudicators will use the Two-Part Evaluation process to evaluate the submitted evidence with an EB2 National Interest Waiver petition. First, USCIS adjudicators will evaluate the submitted evidence to determine which evidence meets the regulatory criteria, by a preponderance of the evidence. Second, USCIS adjudicators will evaluate the submitted evidence together, for the final merits determination regarding the total requirements for the EB2 National Interest Waiver immigrant visa category.

Q: What is the "Request For Evidence" for National Interest Waiver petition?

A: 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.

But simply presenting evidence which relates to the EB2 National Interest Waiver criteria does not necessarily mean that the immigrant visa application should be approved, since the USCIS adjudicator needs to evaluate the submitted evidence. If the USCIS adjudicator determines that the evidence does not meet the standard for EB2 National Interest Waiver classification, the additional evidence may be requested by USCIS, or Request For Evidence (RFE).

Q: What are the Matter of Dhanasar and Matter of NYSDOT that USCIS' Administrative Appeals Office (AAO)  released for NIW petitions?

A: 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.

For an EB2 National Interest Waiver petition, USCIS may grant a national interest waiver of the labor certification, which allows for self-petitioning by the foreign national, if the petitioner demonstrates that the alien is a member of the profession holding an advanced degree or equivalent, or because of exceptional ability in the arts, sciences or business, and will substantially contribute to the U.S. economy, culture, educational interests or welfare. The foreign national’s services must be in the sciences, arts, professions, or business.

In the landmark 1998 case of Matter of New York State Department of Transportation  (NYSDOT). USCIS established a framework for evaluating national interest waiver petitions. This EB2 NIW petition case required:

1) the employment is of substantial intrinsic merit;

2) any proposed benefit be national in scope; and

3) the national interest would be adversely affected if a labor certification were required for the foreign national.

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 case, 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.

Q: What is the the underlying case of Matter of Dhanasar?

 A: In the underlying case of Matter of Dhanasar, the AAO noted that the petitioner:

    * holds two master’s degrees and a Ph.D. in fields related to his area of developing air and space propulsion systems;
    * is serving as a postdoctoral research associate and developed novel models;
    * provided evidence of his publications and other published materials citing to his work;
    * evidence of his membership in professional associations;
    * documentation regarding his teaching activities;
    * letters of recommendation from experts in his field.

In finding that the foreign national petition satisfied all 3 prongs of the new test, it also noted his funding from national science agencies.

Q: Why USCIS vacated the1998 NYSDOT criteria, and enable the criteria for 2016 Matter of Dhanasar case?

A: One of the most productive, often efficient ways to U.S. permanent residence, is through a National Interest Waiver (EB2 NIW), under which a foreign national can receive U.S. permanent residence by showing that his or her employment will serve to the U.S. national benefits. There are two immense advantages to the EB2 NIW immigration category:

1) a foreign national can self-petition for U.S. permanent residence, rather than having to be sponsored by an U.S. employer;
 
2) the NIW petition submission is made directly to USCIS (U.S. Citizenship and Immigration Services), thereby avoiding entirely the recruitment and advertising requirements of the labor certification application process through the Department of Labor.

However, over years, despite the advantages of the National Interest Waiver petition, USCIS immigration examiners have operated under somewhat vague guidance of precedential NYSDOT case, on the adjudication standards for National Interest Waiver petitions. The precedential EB2 National Interest Waiver case of Matter of Dhanasar (AAO, December 2016) provides a more flexible analysis that may benefit many petitioners.

Q: What is the Matter of Dhanasar's first prong of showing "substantial merit and national importance"?

A: For the case of Matter of Dhanasar, regarding the first prong of showing "substantial merit and national importance", the USCIS Administrative Appeals Office (AAO) noted that the alien beneficiary’s merit may be shown in the fields of business, entrepreneurialism, science, technology, health, culture or education. 

It held that the petitioner is not required to show that the alien beneficiary has the potential to create a substantial impact, since it acknowledged that pure science and research may not translate into economic benefits for United States.

Regarding whether the proposed endeavor has national significance, the AAO focused on potential prospective impact. It clearly stated that this impact is not to be evaluated solely geographically, but on a broader scale.

Q: What is the Matter of Dhanasar's second prong of "the foreign national is well positioned to advance the proposed endeavor"?

A: Regarding the second prong of the Matter of Dhanasar case, in determining "whether the foreign national is well positioned to advance the proposed endeavor", the following factors may include, but are not limited to:

    * the individual’s education, skills, knowledge, record of success in similar areas;
    * a plan for the future;
    * progress made in achieving the proposed endeavor;
    * the interest of other related parties, such as users, customers, or investors.

The AAO noted that the petitioners are not required to demonstrate that they are more likely than not to succeed in their fields.

Q: What is the Matter of Dhanasar's third prong of showing "on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification"?

A: Regarding the third prong of the Matter of Dhanasar case, the AAO listed the following factors that may be considered in showing that "on balance it benefits the U.S. to waive the requirements of a job offer and labor certification":

    * in light of the foreign national’s background;
    * whether it would be impractical for the foreign national to obtain a job offer or labor certification on the foreign national’s behalf;
    * whether it would still benefit the U.S. even if other qualified U.S. workers are available; and
    * whether U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification.

It should also be emphasized that the AAO eliminated the requirement of comparing the foreign national to other U.S. workers in the same field, and stressed that the new test was more flexible, so that more foreign nationals may satisfy the requirements of the EB2 National Interest Waiver.

Q: How to meet the requirements of the Matter of Dhanasar's third prong for a NIW petition?

A: The third prong is actually a new prong, unlike the third prong of NYSDOT case, this third prong does not require a showing of harm to U.S. national interest or a comparison against U.S. workers in the petitioner’s field. The NYSDOT case’s previous third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals.

This more flexible third test which can be met in a range of ways is meant to apply to a greater variety of individuals. However, the factors to be evaluated regarding this prong requiring that on balance, it benefits the U.S. to waive the requirements of a job offer and labor certification still leaves much room for subjectivity, especially in determining when it is considered “impractical” for the foreign national to obtain a job offer or labor certification, and whether the U.S. interest in the foreign national’s contributions is sufficiently urgent to forgo the labor certification. 

That is where excellent advocacy skills will continue to play a critical role in obtaining an approved EB2 National Interest Waiver petition.

Q: What are the Dhanasar case decision's impacts on the EB2 National Interest Waiver Application for foreign entrepreneurs?

A: The Dhanasar case decision opens the NIW category to entrepreneurs. The decision reviews the history of NIWs and what
did and did not work in the past. This decision will make NIW green cards more accessible in general, and specifically for entrepreneurs. Here are the few aspects of the new decision:

1) The case allows using the person’s degrees and experience. This benefits highly educated entrepreneurs.

2) The case allows teaching as evidence. So an entrepreneur who also teaches in his or her field will now get a boost in the NIW category.
 
3) The benefit to the U.S. interest can be local, such as helping to create jobs in a depressed area or creating a specialized local product. Entrepreneurs can argue the impact of their work on the economy, starting regionally, and then adding national supply chain implications if applicable.
 
4) Dhanasar decision specifically notes that entrepreneurial work can lead to an NIW petition approval. This has been on the USCIS website for several years, but now it is even clearer. The decision notes that “evidence that the endeavor has significant potential to employ U.S. workers, or has other substantial positive economic effects may well be understood to have national importance.”
 
5) The decision also notes that the entrepreneurial venture does not need to succeed: “many innovations and entrepreneurial endeavors may ultimately fail, in whole or in part, despite an intelligent plan and competent execution. We do not, therefore, require petitioners to demonstrate that their endeavors are more likely than not to ultimately succeed.” The business just needs to be “well positioned to advance the proposed endeavor.” This stresses the importance of a high quality business plan for entrepreneur's NIW petitions.
 
6) The decision requires an NIW applicant to show that it would be “impractical” to go through the normal labor certification process. The labor certification is the most common form of employer-sponsored Green Card application. But for entrepreneurs, it can be difficult because labor certification requires a full time job offer at a competitive salary, and evidence that the company has the ability to pay that salary.

As always, NIW immigration category is a chance for creativity in showing a foreign national’s talents.

Q: I want to apply for U.S. Green Card with the EB2 National Interest Waiver (NIW) petition, Can you help me?

A: 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 EB2 National Interest Waiver 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.

Q: How to submit evidence to present a strong case that an alien applicant is considered having exceptional ability?

A: 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.

Q: Why it it important to get reference letters from independent experts for an EB2 National Interest Waiver petition?

A: The letter of recommendation is also called reference letter, and it is a letter written by an expert in the alien applicant's field. The recommendation letters are essential for EB2 National Interest Waiver petition. The USCIS adjudicators are normally not experts in a field, thus the only way for them to determine whether an alien applicant qualify for exceptional ability and EB2 National Interest Waiver criteria is looking at submitted objective evidence. A recommendation letter is among the most important objective evidence.

For the EB2 National Interest Waiver petition, the foreign applicant should obtain multiple recommendation letters or reference letters from recognized experts in their field. The majority of these letters should be from independent experts outside the alien applicant's circle. The letters should evidence the foreign national’s significant role in an area of substantial intrinsic merit, and the proposed work will benefit the nation as a whole. The letters should state that the foreign national is exceptional and in what ways.

Q: How could an a reference letter add value to an EB2 National Interest Waiver petition? 

A: The reference letters may substantially boost the chance of a successful EB2 National Interest Waiver petition. The USCIS believes that an alien applicant working in an area of substantial intrinsic merit with exceptional ability should have unsolicited materials reflecting the exceptional ability acclaim. Thus, reference letters from independent experts should carry more weight, and they are proof of the alien's accomplishments and exceptional ability. 

Generally, alien applicant's professional work is expressed in specialized language. In order to assist the alien’s significant role in an area of substantial intrinsic merit, USCIS adjudicators will consider the reference letters from the experts in the field  for the alien’s work and contributions. 

But not all reference letters could help to provide such analysis. The reference letters that specifically indicate how the alien beneficiary has contributed to the field and its impact to the field would add value for a EB2 National Interest Waiver petition. On the other hand, the reference letters do not include specifics, and simply use hyperbolic language do not add value for a NIW petition.

Q: What information should be included in the recommendation letters for EB2 National Interest Waiver petition?

A: These are things that should be included in a recommendation letter for EB2 National Interest Waiver petition:

1) Recommender's Qualification: A recommendation letter or reference letter should include the description of the recommender, and the statements should establishes the qualifications of the experts in the field to judge the alien applicant's work or research.

2) Helpful testimonials: It is crucial to include helpful testimonials from experts in the field for an EB2 National Interest Waiver petition, and the testimonials should indicate that the alien's accomplishments and degree of expertise are above that ordinarily encountered in the field. The recommendation letter or reference letter should set the alien applicant apart from other persons in the field, not merely establishes the alien's competence for the work or research.

3) Substantive information: A good recommendation letter or reference letter should indicate the high level of unique expertise the alien applicant's work or research. If the recommendation letter is from an employer or professor of the alien applicant, it should specify the work the foreign national is responsible for and the requirements of the job. Although a job offer is not required for priority workers, a recommendation letter from an employer can cite to such a position to establish that very few individuals can fill the offered position, and the foreign beneficiary is one of these few individuals. 

In addition, recommendation letters that briefly discuss the petitioner's activities and described him or her as a knowledgeable individual, but lack specific information regarding how the petitioner's contributions had significantly and consistently influenced the field are insufficient.

Q: I would like to file an EB2 National Interest Waiver case, but I plan to move in three months to a different state. What will happen to my petition if I move? Also, can I apply for Green Card under more than one category in order to increase my chance, for example: EB2 National Interest Waiver and traditional Labor Certification?

A: After your moving, your petition will remain active and your move will have no effect. In fact, you are eligible to file a new EB2 National Interest Waiver case in that jurisdiction if you move to a state that has a different USCIS Service Center than the one where you previously filed, to increase your chances of approval.

Yes, you can apply for Green Card under more than one category in order to increase your chance. The law does not forbid multiple applications under different categories.

Q: What if I lose my job while my EB2 National Interest Waiver petition is pending? If my application under NIW is rejected, can I apply again? 

A: If you lose your job while the EB2 National Interest Waiver petition is pending, your NIW petition may be approved. If it is your self-petition and you find another job later in the same field, your Form I-485 application of Adjustment of Status may be approved also, and your status should be safe.

If your application under NIW is rejected, you can apply it again. Unlike the Labor Certification process where a rejection will result in a mandatory delay of six months, an NIW application can be filed immediately after an unfavorable decision.

Q: I am considering the Green Card application in EB2 category. What are the advantages of EB2 National Interest Waiver application over the regular EB2 based on the PERM Labor certification?

A: To get a U.S. Green Card under the EB2 National Interest Waiver category, there are two independent steps. The first step is to file USCIS Form I-140 petition to verify that your employment in the United States has enough national interest to waive the otherwise required Labor Certification (or PERM Labor Certification). 

After your EB2 NIW based Form I-140 is approved, you may file USCIS From I-485 to receive your Green Card. Many people prefer EB2 National Interest Waiver application over the EB2 based PERM Labor Certification for several reasons.

  • First, you can self-petition the EB2 NIW. This means that you can file for your Green Card application by yourself, without the consent or knowledge of your employer, or your employer's sponsorship. 
  • Second, the regulation requirements for EB2 National Interest Waiver are easier than that for EB1 Alien of Extraordinary Ability (EB-1A). 
  • Third, with EB2 National Interest Waiver, you can skip the Labor Certification process. Filing a Labor Certification could be a burdensome and time consuming process.

Q: I want to know the difference between the EB2 National Interest Waiver (EB2 NIW) application and the EB1 Extraordinary Ability (EB-1A) application. What are the advantages of one over the other?

A: The EB2 National Interest Waiver (NIW) and all EB1 immigrant categories (EB1 Extraordinary Ability, EB1 Outstanding Researcher and Professor, and EB1 Multinational Executive or Manager) do not not require Labor Certification. For the EB2 Exceptional Ability category (not EB2 NIW), the U.S. employer can submit the Form I-140 petition only after obtaining the Labor Certification from U.S. Department of Labor. 

The EB1 Extraordinary Ability and EB2 NIW immigrant categories can be self-petitioned, so the foreign aliens do not even need an job offer of employment and the U.S. employer's sponsorship. But for EB2 Outstanding Researcher and Professor petition, an applicant needs a job offer and U.S. employer's sponsorship.

The scope for EB2 NIW petition does not have to be very narrow. An alien applicant can submit both EB1 NIW and EB-1A petitions at the some time to increase the approval chance, if the alien applicant can meet the qualification requirements. If an alien applicant is from a visa retrogressed countries, such as India or China, then EB1 category is more desirable route than NIW, becuse the waiting time for filing Form I-485 form is much shorter.

Q: My application for PR (I-140) under EB2 National Interest Waiver is pending while my practical training period is almost over. Do I still need either work authorization or H-1 visa in light of my PR application?

A: Yes. Your application for PR is irrelevant to your current non-immigrant visa status, and you need to maintain your legal status all the time.

Q: I am thinking of applying under "national interest waiver", but my employer is applying for Labor Certification for me at this time. Can I still file NIW application?

A: Yes. USCIS is not opposed to concurrent filing of applications for immigration.

Q: I was approved of I-140 under the third preference (EB-3) a few years ago, and I still have at least two years' immigration visa waiting for adjustment of status. If now I apply under NIW and obtain approval, can I use my priority date of EB-3 for adjustment based on my EB-2 approval? If I can do so, I do not need to wait any longer to adjust status.

A: Yes, you can. You are allowed to retain the earlier priority date for application filed in EB-1, EB-2, or EB-3 and apply the priority date for any subsequent application under EB-1, EB-2, or EB-3.

Q: I am considering applying under an EB-1 classification. May I also apply for an NIW at the same time? What are the advantages of NIW in comparison with Labor Certification? 

A: You can also apply for an EB2 National Interest Waiver after an EB-1 petition, or at the same time. You are not bound by only one immigrant petition of Form I-140. You may petition under more than one category simultaneously. This increases your odds of getting an approval, since it is impossible to predict whether the USCIS will approve any given case. 

The Second Preference category includes EB2 National Interest Waiver and some Labor Certification cases. The Labor Certification may take longer time. In comparison with Labor Certification, EB2 National Interest Waiver as well as first preference (Extraordinary Ability and Outstanding Researchers and Professors) still remain as the viable alternatives and short cuts. They will always have the advantage over Labor Certification with or without the backlog.

Q: I heard that there is a backlog on 2nd preference in employment-based immigration for Chinese nationals, is it true? do I need to apply NIW now or wait?

A: The U.S. State Department notifies the public the availability of the immigration visas each month, it does so based on its prediction of how many immigrant visas available for each country. When the State Department believes a country has been "over-booked", that is there are more applications filed than the country's quota allows, it will stop processing application by issuing an arbitrary cut-off date. It allows the State Department to "clean up" the existing backlog through re-allocating left-over visas from different categories. Once the backlog is eliminated or the whole picture is clear as to when it will be eliminated, the cut-off date will move forward.

Please note the cut-off date does not correlate to our calendar. In 1993, the second preference moved backward eighteen months from current in response to Chinese Students Protection Act, which gave over sixty thousand visas to Chinese nationals. Only after around six months, the cut-off date moved to current again in one jump. The same thing may happen again.

No matter whether there is a backlog, it is always a good idea to apply now, not wait. In light of the existing backlog, it only makes more sense to apply now than waiting, since it is a 'first come first get' case.

Q: What standard does the USCIS take to determine an EB2 National Interest Waiver in NYSDOT case?

A: The USCIS' AAO (Administrative Appeal Office) decision of New York State Department of Transportation (NYSDOT)'s NIW case has established new standards for obtaining EB2 National Interest Waiver petition approval. The AAO held that three factors should be considered when evaluating an EB2 National Interest Waiver petition:

1) Area of substantial intrinsic merit;

2) Proposed Benefit of National Scope, and

3) Significant Benefit in the “National Interest“ Field.

Q: What is the requirement of “area of substantial intrinsic merit“ in NYSDOT casse?

A: In the precedent NYSDOT case, USCIS stated that the EB2 National Interest Waiver petitioner must establish that the foreign national's proposed employment is in an area of substantial intrinsic merit. The importance of the occupation or the field of endeavor must be established as a threshold requirement. This requirement could be meet if a particular field of endeavor is related to an important national goal of United States.

Q: What activity is within “national scope“ in NYSDOT casse?

A: The alien beneficiary's proposed national goal should be served in the national scope, and it is not sufficient to serve in a regional, local, or private interest. The relationship between a foreign beneficiary's activities and the U.S. national goal may not be linked directly for some situations. 

Even these activities may be local in nature essentially, but many research activities and economic activities would be tied together with the U.S. national goal or national economic network in some way, and therefore could benefit the U.S. national interest. In the NYSDOT case, the alien beneficiary's work on one New York State's road and bridge infrastructure met the requirement of “national scope“

According to USCIS, there are some activities that are insufficient for "national scope." For example, some activity's impact on a national level is negligible, such as the services of teachers, pro bono attorneys, and gourmet chefs.

Q: What is the standard of “significant benefit in the national interest field“ in NYSDOT case?

A: According to USCIS, an EB2 National Interest Waiver petition should establish that the alien applicant's work in the national interest field should “considerably“ outweighs the inherent national interest in protecting U.S. workers through the DOL's labor certification process. 

The petitioner needs to provide strong evidence to show that the benefit of the alien beneficiary's work and activity could “considerably outweigh“ the national interest in the labor certification process, or the alien beneficiary should serve the national interest “to a substantially greater degree than would an available U.S. worker having the same minimal qualifications.“ 

Q: What are the restrictions for healthcare workers seeking EB2 classification?

A: The alien workers in the healthcare field seeking EB2 immigrant visa classification must meet certain certification requirements. They are required to obtain certification to be qualified for EB2 classification, which may include nurses, physical therapists, occupational therapists, speech language pathologists, medical technologists, medical technicians, and physician assistants.

The certification is required whether the alien workers was trained in U.S. or in foreign countries. Many of the healthcare workers seeking an EB2 immigrant visa will be EB-2 advanced-degree professionals or EB-3 professionals/skilled workers.

Q: Can a person who holds a master's degree and working for a State Government apply for a National Interest Waiver?

A: It is possible for an alien working for a State Government with a Masters degree to apply for EB2 National Interest Waiver, and it manly depends on the alien's particular achievements and contributions. 

The petitioner should convince the USCIS adjudicators that the alien beneficiary is truly superior to others in the field, and the work is in the national interest, and it will benefit the United States as a whole. For example, a talented individual working on science projects has advanced the science of the field as a whole, and has influenced others in the field.

Q: How difficult is it to have EB2 National Interest Waiver petition approved?

A: The alien applicant for EB2 National Interest Waiver petition should prove the prospective national benefit, and establish that the waiver of the Labor Certification will be in the U.S. national interest. USCIS adjudicators will judge each case's merit individually.

If an alien beneficiary is qualified for the basic EB2 National Interest Waiver requirements, the probability of successful EB2 NIW petition depends largely on the way the case is presented to USCIS. If the evidence is relevant and well presented, and the argument is made persuasively, then the EB2 National Interest Waiver petition case should be approved routinely by USCIS adjudicators.

Q: I have a baccalaureate degree in engineering from my home country, and also have more than 5 years work experience in my field. Can I apply for Green Card in the EB2 National Interest Waiver category? and how could I prove that I can meet the "advanced degree" requirements for National Interest Waiver petition requirement?

A: For EB2 National Interest Waiver (EB2 NIW) petition, the petitioner must establish that he or she have an advanced degree as of the priority date. The petitioner should  submit advanced degree certificate with certified translation of English language, and/or submit a detailed advisory evaluation of the beneficiary's foreign credentials. The evidence for advanced degree may consist of the following documentation:

• A copy of the beneficiary's official academic record, showing that the beneficiary has a U.S. advanced degree or a foreign equivalent degree, the dates of attendance, area of concentration of study, and the date the beneficiary received the degree; or

• A copy of the beneficiary's official academic record showing that the beneficiary has a U.S. baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current or former employer showing that the beneficiary has at least five years of progressive post-baccalaureate experience in the specialty.

The employer can issue the letter of experience on official letterhead and must list the employer's name and address, the date, the signer's name and title, and a description of the beneficiary's experience, including dates of employment and
specific duties.

If the beneficiary completed his education outside the United States, in addition to the beneficiary's official academic record, the petitioner should submit a detailed advisory evaluation of the beneficiary's credentials. This evaluation is necessary to determine the level and major field of the beneficiary's education in terms of equivalent education in the United States.

An acceptable evaluation should consider formal education only, and not practical training or experience; state whether the beneficiary completed the United States equivalent of high school before entering college; provide a detailed explanation of the evaluated material, rather than a simple conclusive statement; and briefly state the evaluator's qualifications and experience.

Q: What are the differences between EB2 and EB2 EB2 National Interest Waiver petitions?

A: For an ordinary EB2 immigrant visa petition case, the alien beneficiary should have an U.S. employer as the immigrant visa petition sponsor, and the employer is the petitioner for the alien beneficiary to obtain a Labor Certification from U.S. Department of Labor, before filing the USCIS Form I-140. The EB2 petition needs to establish the qualification of the alien beneficiary - the alien beneficiary has advanced degree or has exceptional ability. 

For an EB2 National Interest Waiver petition case, the alien applicant can do self-petition by himself or herself, even without a job offer and U.S. employer as a petition sponsor, or can have his/her employer as the petitioner if the alien has a job offer in United States. The EB2 NIW petition should establish the alien's qualifications under both ordinary EB2 category and the qualification of EB2 National Interest Waiver, such as NYSDOT three-prong test. Therefore, if you do not have an U.S. employer as your sponsorship, or if you do not want through the Labor Certification process, the EB-2 NIW petition is your better option.

Q: May a F-1 student visa holder petition for EB2 National Interest Waiver (NIW)? Do I have to wait to apply for the Green Card after my graduation and changing the visa to H-1B?

A: The F-1 international student visa is a non-immigrant visa, but it does not mean that an international student with F-1 visa is not allowed to apply for the Green Card inside the United States. It is true that a F-1 non-immigrant visa student cannot have "dual intent" when applying for the F-1 nonimmigrant visa. However, an non-immigrant visa holder, such as F-1 visa or J-1 visiting scholar visa, can change its "intent" thereafter to receive a nonimmigrant visa in the United States.

Normally, anyone can file an immigration visa petition inside the United States, including the F-1 students, if the alien applicant can meet the qualification requirements in the regulation of EB2 National Interest Waiver. To file a Green Card petition in the U.S., an non-immigrant visa holder can also change its visa type to a nonimmigrant visa such as H-1B or L-1 visa which allows the dual intent.

But if the international student's F-1 visa time is not long enough to finish the degree in U.S. university, it is better to wait to file the Green Card application after the F-1 visa has been extended.

Q: May a Ph.D. student apply for an EB2 National Interest Waiver? What is the success rate?

A: Many Ph.D. students have successfully obtained their Green Cards in the EB2 National Interest Waiver category. Some people may think that Ph.D. students are still under the guidance of professors for their researches, so it is difficult for USCIS to believe that the Ph.D. students' accomplishment in the field is significant, and they are "substantially above others in the field." But actually, the success rate of Ph.D. student petitioning for EB2 National Interest Waiver immigration visa is about the same as other petitioners in this category.

Q: Is National Interest Wavier green card only for scientists and researchers?

A: The EB2 National Interest Wavier green card application is not only for scientists and researchers, but also for people working in other fields. Although many EB2 NIW petitioners are researchers in difference fields of science, the EB2 NIW law does not exclude alien applicants working in other fields. 

In reality, USCIS adjudicators has approved many EB2 National Interest Waiver petition cases to engineers, actors, artists, musicians, painters, movie directors, writers, educators, and entrepreneurs.

Q: What about the issue of prevailing wage?

A: Since the U.S. Department of Labor is not involved, "prevailing wage" is not an issue. Obviously, if the salary offered is high, then the overall package will look better. Also, if the salary offered is very low, the applicant will have to explain why he or she is earning substantially less than his or her peers. If the answer is that the applicant is engaged in research at an institution where similarly employed researchers are paid similar salaries, then this should not be a problem. 

Also, if the applicant is working for a nonprofit institution, this may explain a lower salary. The USCIS will expect a person working for a for-profit entity to earn a salary that is equal to or higher than that paid to similarly qualified professionals working for similar companies.

Q: In case the initial application for PR has failed, is there a negative impact on the applicant's status and later attempt to apply for Green Card under NIW? Also, my friend has the same credentials as me and his EB2 National Interest Waiver petition has recently been approved. Will my NIW petition also be approved? 

A: In case the initial EB2 National Interest Waiver application has failed, there is no negative impact on the applicant's status and later attempt to apply for Green Card under EB2 National Interest Waiver. The law neither forbids nor discourages concurrent or repeated applications. One time failure has no impact on later application.

You also need to know that each case is different, and although your credentials may be identical to someone else, your case may result in a different outcome. We provides a free evaluation where we can review your resume and give you our evaluation on your particular case. 

Q: What are the reasonable rate of attorney fees?

A: Based on survey, the average attorney fee throughout the United States for permanent residence application from document preparation until you got the Green Card is about between $5,000 to $10,000, in which the application fees to USCIS are not even included. 

Usually, there is no money-back guarantee offered, and no lawyer can and should guarantee the success of the petition.

Q: I heard some attorneys could generate evidences for you. Some attorneys have internal relations with USCIS so their claim will accelerate your application, is it true?

A: No, that is not true. We believe the honesty and justice.

Q: Is it possible to file two petitions such as an EB-1 and EB2 National Interest Waiver at the same time? and how do I submit a document that is in a language other than English?

A: It is possible to file two petitions such as an EB-1 and EB2 National Interest Waiver at the same time. Some of our customers file two I-140 petitions simultaneously. There is nothing stated in the law that prohibits multiple filings. Multiple filings increase your chances for approval. 

Any foreign language document must be accompanied by a English translation which the translator has certified as complete and correct, and by the translation certification that he or she is competent to translate from the foreign language into English.

Q: If I do not have any published articles in journals within my field, may I still apply for a NIW? Do I need to submit the original copy of a document?

A: If you do not have any published articles in journals within your field, your can still apply for an EB2 National Interest Waiver. There is no specific requirement that you need to have published articles in order to apply or obtain approval of an EB2 National Interest Waiver petition, although in many instances publications would help improve chances of approval.

Generally, you may submit a photocopy of a document to USCIS. But you should be prepared to present the original copy of the document to an USCIS official at any time later.

Q: I had a PhD in physics and a MS degree in computer science. I used my MS in computer science to find a job here. According to PhD in physics, the prevailing wage in my area is much higher than my current annual income of the job. Will my salary affect my EB2 National Interest Waiver application to the Green Card?

A: It depends on how you file your petition and which category your are going through. If you are applying for a Labor Certification, you may run into trouble, if you can not meet the prevailing wage requirement. But for EB2 National Interest Waiver, the prevailing wage should not be a problem, because the U.S. Department of Labor is not involved.

Q: My major was Economics. After I finished my Ph.D. in Economics, I went to computer science and got a M.S. degree. Will this affect my application for the Green Card?

A: It depends on how you organize your evidences. If you are currently working in a different field from the field where you got your highest degree, this kind of problem can generally be remedied by way of organizing and presenting your evidences.

Q. How do I know my application has been accepted by USCIS?

A: Once your application is accepted by USCIS, you will receive a receipt from USCIS informing you the acceptance and also informing you the duration of time for processing. Any petition that is not signed or is not accompanied by the correct fee will be rejected with a notice that it is deficient.

You may correct the deficiency and resubmit the petition. However, a petition is not considered properly filed until accepted by the USCIS. A priority date will not be assigned until the petition is properly filed.

Q. How long does it take for the USCIS to processing the NIW I-140 application?

A: It usually takes three to six months for USCIS to process your I-140 petition, but some petitions may take longer for adjudication. The result may be petition approval, or petition denial, or Requests For Evidence (RFE). If you are required to provide more evidence, it may take another one to four months after you submitted the required information.

Q: What is a "Request for Evidence"? 

A: Sometimes, the USCIS is not convinced that the alien petitioning under an EB2 National Interest Waiver category has met the burden to prove that an applicant qualifies for the NIW category. In such cases, USCIS will typically submit a "Request for Additional Evidence" or "Request for Evidence (RFE)" seeking certain forms of evidence that the USCIS finds lacking. An applicant should take great care to present a strong case, so that it may be approved without a Request For Evidence. Nevertheless, there is no way to predict how a USCIS officer reviewing a particular case will respond, and sometimes even the strongest of cases receive a "Request for Evidence".

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.

It is critical to appropriately and proficiently reply the USCIS issued Request for Evidence, incorrect response of the RFE will directly result in your National Interest Waiver petition rejection. To help you replying the Request for Evidence, and eventually turn the RFE into your Green Card, we provide a "Complete Do-It-Yourself Package for RFE of NIW Ability (http://www.greencardapply.com/rfe.htm)". 

Q: Can you help me for my NIW Request for Evidence notice received from USCIS service center?

A: 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"

Q. After my NIW is approved, do I need to remain working in the same field as indicated in my petition? Also, is there any penalty if somebody intentionally provide false evidence?

A: After your EB2 National Interest Waiver is approved, you need to continue working in the field specified in the NIW petition. If you venture into another area, the USCIS may deny your Adjustment of Status (Form I-485) or even revoke permanent residency after an Adjustment of Status (I-485) is granted. 

If you knowingly and willfully falsify or conceal a material fact or submit a false document, you will be denied the benefit you are filing for, and may be denied any other immigration benefits. In addition, you will face severe penalties provided by law, and may be subject to criminal prosecution.

Q. Can I change employers before my Green Card, if my I-140 is approved on the grounds of a national interest waiver?

A: It is ideal if you keep your old job, or stay in the field if you decide to change job. If you are no longer employed, you may have problem with USCIS. 

If the basis of granting the EB2 National Interest Waiver is the work done while being employed by a specific employer, then the alien worker should intend to continue to work for the employer. It may be possible in some cases to change employers provided the worker's job duties and responsibilities will be similar to those while employed with the previous employer and therefore, it is still in the national interest.

According to USCIS regulation, there shall be no interview for employment based case. If you are unemployed, you should be prepared to explain the circumstances for the unemployment, for example, boss' research fund has run out. Generally, it should not be a problem since EB2 National Interest Waiver does not require a job offer.

Q. If my NIW petition is approved, when may I file a petition for Adjustment of Status (Form I-485) or an immigrant visa? How to seek or to continue employment after the I-485 application?

A: You may file a Form I-485 application for Adjustment of Status as soon as possible, or file Form I-140 and Form I-485 concurrently. This applies regardless of your country of origin.

To seek or to continue employment after they file the I-485, you need either a work authorization card or EAD (Employment Authorization Document) by filing application form I-765; or you may simply ask your employer to apply for an H-1B status for you. The EAD is much easier to obtain since you are entitled to employment while your I-485 is pending, whereas H-1B requires much more work and may encounter problems such as prevailing wage. After the I-485 filing, your status is legal, which is called" I-485 pending".

Q. I am a Ph.D. candidate in computer science, and in the final step to file my NIW I-140 for self-petition. Recently I got a job offer as a software engineer in another city. The job is not exactly in the same field as my research field for the Ph.D., which my petition is based on, but they are both in computer field. I want to know if there will be any trouble for me in this situation?

A: It all depends on how you set accents in your petition. You may need to define your research area, so that it will include both your current research and future job.

Q. What does consular processing mean? I received my I-485 NIW approval notice, and it says my approved case has been sent to NVC (National Visa Center) for consular processing. I reside in US and I am from India.

A: Consular Process (CP) means process of getting Green Card by traveling to a US consulate abroad, as opposed to adjustment of status in the US. If your I-140 approved for CP, you can still do AOS (Adjustment Of Status) without any problems if you are in the US.

Q. I want to know  how to file an amendment for an existing I-140 NIW application, to increase the salary and add more documents? My original application was still pending. During this time the above information has changed.

A: You do not need to file an amendment at this time. As for salary and additional material, you may keep this information for possible RFE.

Q. I self-petitioned my I-140 NIW case, and replied a RFE letter later. Now when I check the USCIS automated voice machine, it says "written decision sent on...". Does it mean that my case was denied? The following is my background:

(1) Ph.D in electrical engineering from US University
(2) More than 12 papers
(3) About 24 citation
(4) Two patents.
(5) Now working in a biotechnology company

A: Generally, "written decision sent on ..." means your case has been denied. With your background, you can try EB1-EA or EB1-OR petition later. Remember that your cover letter and document presentation is in fact more important than your credentials themselves for these petitions.

Q: I am in J-1 status and subject to the two-year home country residency requirement. May I apply for an EB2 National Interest Waiver? 

A: Yes. However, you need to either obtain a J-1 waiver or satisfy the two-year home residency requirement before you may file Form I-485 to adjust your status to U.S. permanent resident. 

Q: I am currently in J-1 status and subject to the two-year home country residence requirement. If I apply for a NIW and get it approved, is my J-1 home country requirement waived? 

A: No, a J-1 waiver and an EB2 National Interest Waiver are two different things. A J-1 waiver is an application to waive the two-year home country residency requirement. A NIW is an immigration petition. Even if your NIW is approved, you are still subject to the two-year requirement. You need to either obtain a J-1 waiver or satisfy it before you may adjust your status to a permanent resident. 

Q. I am in J-1 visa, and I just filed I-140 NIW petition to USCIS. If it is approved, can I file I-485 with J-1 visa also? Since I-485 application takes long time, I will probably be able to get J-1 waiver by this time.

A: First, you have to get the approval of the I-140 NIW petition. Then you can go ahead to work on the I-485. Let's assume that you have had the approval of I-140 NIW. Now you have to get the J-1 waiver before you can file the I-485. So you can not file I-485 application first, and wait for the approval of J-1 waiver later.

Q. Can I carry over I-140 approval from one company to another i.e. I don't have to file new I-140 if change job under I-140. Also, can I apply for Consulate Processing (CP) if my I-140 gets approved but EB-2 priority dates are not current.

A: You can change companies if you are the petitioner i.e., your company does not support your EB2 National Interest Waiver case. You can apply for CP/AOS but in either case you need to prove that you will not become a public charge i.e., you have a job. Also you need to stick to the same field in which your NIW is approved until you finish the Green Card application process. Also, you cannot apply for CP/AOS until your priority date is current.

Q. My NIW application was approved. However, a RFE was issued to me from my simultaneous EB1-EA petition. What should I do? and is there any advantage of EB1-EA over NIW in this case? 

A: Both the EB1-EA and NIW waive the LC (Labor Certification) requirement and enable you to change jobs during the process as long as your work continues to be in the same or similar area. The main difference is the categories EB1 vs EB2. This becomes important from an immigrant visa number availability perspective. Usually, EB1 has little or no backlog whereas EB2 backlogs can have a substantial backlog at times. Of course, this also depends on the country to which your visa will be charged.

If the priority date is current for EB-2,  do not bother with the RFE for the EB1 petition. There is no special treatment for EB-1 vs. EB-2 for the rest of the Green Card process.

Q. I am an IT software development manager for a major telecommunication company. I do not have a 5 years of experience as a manager. I do have a masters degree from US. Do I qualify for EB1-EA or NIW? 

A: Based on your information, you may qualify EB1, but it may be difficult for your case to be approved as EB1. In most cases, USCIS will look for demonstrations of cutting edge research, several published papers, and other significant accomplishments for EB1 applications. Your job and functional category seems not truly in EB1 Extraordinary Ability. But everything depends on how you present your case, and you may qualify for EB2 National Interest Waiver also.

Q: How to reply the RFE notice?

A: 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.

For RFE of NIW Application, please also visit:

1) http://www.greencardapply.com/rfe/request-for-evidence-niw.htm 


2) http://www.greencardapply.com/rfe/rfe_package_niw.htm 

Q: What is the Notice of Intent to Deny for my EB2 National Interest Waiver Petition?

A: The 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 an EB2 National Interest Waiver 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.

Q: I am a J-1 visa holder and subjected to the two-year home country residency requirement. Can I apply for National Interest Waiver (NIW) based From I-140 petition now, and get my J-1 waiver thereafter?

A: For a J-1 visa holder subjected to the two-year home country residency requirement, you can file the NIW based Form I-140 petition now for your immigrant visa, and get your J-1 waiver later. You do not need to have a J-1 waiver before file an Form I-140 petition. The two-year home country residency requirement does not allow you to adjust the status from J-1 to U.S. permanent residency. 

After your NIW based Form I-140 approval, you are still subject to the two-year home country residency requirement, and you need to get the J-1 waiver before you can file Form I-485 to adjust your status to U.S. permanent resident. 

To help you get your J-1 waiver easily and quickly, we provide a high quality and case-proven
Complete Do-It-Yourself Package for J-1 Waiver Application, based on our extensive and practical experience. As added value in the Complete Do-It-Yourself Package for J-1 Waiver Application, we provide comprehensive instructions on J-1 waiver application requirements and processing, and we also let you know the required application documents, evidence, procedures, samples of recommendation letter and J-1 program sponsor letter, samples of required forms, and detailed explanation of the J-1 waiver application related forms and issues for different J-1 waiver options.

Q: How to Effectively Organize the Evidence Accompanied with Form I-140 Petition based on NIW

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. 

Q. What is the Process of U.S. Permanent Residency (Green Card) Petition in the Category of EB2 National Interest Waiver?

A: 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. 

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. 

Q. How to apply for Form I-485 Adjustment of Status after Form I-140 approval?

A: Application Form I-485, application for adjustment of status, is the document you are required to file after your application for immigration based on employment is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a "Complete Do-It-Yourself Package for Form I-485 Application".

With the change of immigration regulation, rules on adjustment of status become much more restricted. You must provide visa records to establish your and family members' continuous lawful status since you entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved. It generally takes more than twelve months for USCIS to process your Form I-485 adjustment of status application if you are not waiting for a visa quota.

Q: After my EB2 National Interest Waiver based Form I-140 approval, how to apply for adjustment of status to get my Green Card?

A: The USCIS application Form I-485, application for adjustment of status, is the form you are required to file to get your Green Card after your application for immigration based on EB2 National Interest Waiver is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.

An immigrant  visa's "priority date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for EB2 NIW application is "current" for aliens from many countries, but not for aliens coming from China and India. Therefore, you can file EB2 National Interest Waiver based Form I-140 application with Form I-485 application concurrently, if you are not coming from China or India

With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.

Q: My EB2 National Interest Waiver based Form I-140 has been approved by USCIS. But I am now working my home country, how to get my Green Card?

A: 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.

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. 

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.

Q: Can an entrepreneur qualify as a member of a profession holding an advanced degree?

A: A foreign entrepreneur can qualify as a member of a profession holding an advanced degree, if the:

1) Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf;

2) Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree;

3) Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent;

4) Petitioning employer has received an individual labor certification from the Department of Labor; and

5) Entrepreneur meets all the specific job requirements listed on the individual labor certification, or will file EB2 National Interest Waiver Petitions for the foreign entrepreneurs.

Q: Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?

A: A foreign entrepreneur can qualify as an individual of exceptional ability in the sciences, arts, or business, if the:

1) Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf;

2) Entrepreneur will be working in the sciences, arts, or business;

3) Entrepreneur has exceptional ability in the sciences, arts, or business;

4) Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States

5) Petitioning employer has received an individual labor certification from the Department of Labor; and

6) Entrepreneur meets all the specific job requirements listed on the individual labor certification, or will file EB2 National Interest Waiver Petitions for the foreign entrepreneurs.

Q: How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?

A: The law defines exceptional ability as "degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business." For a foreign entrepreneur to establish that he or she has exceptional ability in the sciences, arts, or business, the entrepreneur would need to establish that he or she could meet at least three of the six criteria: 

1) An official academic record showing that the beneficiary has a degree, diploma, or certificate from a college, university, or school relating to the area of exceptional ability;

2) Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;

3) A license to practice the profession or certification for a particular profession or occupation

4) Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability

5) Evidence of membership in professional associations; or

6) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

The regulation requires that the the entrepreneur have a degree “relating to” the area of exceptional ability, which means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field.

An an example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business. Also, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q: If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?

A: If the standards for exceptional ability do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.

Comparable evidence can be submitted in support of the criteria listed for exceptional ability. USCIS will consider the totality of the circumstances when reviewing the evidence provided for eligibility of the EB-2 visa classification. When comparable evidence is presented, the alien entrepreneur should explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation. 

There is no limit on the type of comparable evidence the alien entrepreneur may submit. USCIS will focus on the quality of the evidence, and how it compares to the regulatory criterion for EB-2 visa classification. As an example, the alien entrepreneur may demonstrate:

1) past achievements in obtaining venture capital funding from reputable sources;

2) past participation in incubators that have high evaluative standards for participation - entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise.

Q: How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?

A: The alien entrepreneurs should discuss which elements - national economy, cultural or educational interest, or welfare of the United States, the entrepreneurial enterprise is claimed to benefit:

1) Example one: the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States;

2) Example two: the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States. It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas. 

Q: Can an entrepreneur qualify for a NIW?

A: A National Interest Waiver (NIW) exempts the alien beneficiary from the ordinary requirement of a job offer, and thus from receiving a labor certification from the U.S. Department of Labor. An alien entrepreneurs can obtain a waiver of the job offer requirement and therefore the labor certification, if it is in the U.S. national interest, and can meet the qualification requirements.

Q: If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?

A: If an alien entrepreneur wants to file an EB2 National Interest Waiver petition, the alien entrepreneur must demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

Q: If an entrepreneur wants to file for a NIW must he or she have an actual employer in the United States?

A: If an alien entrepreneur wants to file for an EB2 National Interest Waiver petition, the alien entrepreneur does not need to have an actual employer in the United States. If the alien entrepreneur qualifies for EB2 National Interest Waiver, he or she does not need to have an actual job offer from a U.S. employer.

Therefore, an alien entrepreneur is able to self-file EB2 NIW petition for him or herself, with the role of both the petitioner and beneficiary. If the alien applicant's services are in the sciences, arts, professions, or business, and are in the U.S. national interest, the job offer is waived.

Q: Is there a definition of “national interest”?

A: The term “national interest” is not defined in the USCIS regulations, and U.S. Congress did not specifically define the term “national interest” also. But USCIS has issued a precedent decision, Matter of New York State Department of Transportation (NYSDOT), concerning "national interest" and the EB2 National Interest Waiver petition.

USCIS' precedent decision for NYSDOT case lays out a three-prong test for EB2 NIW applicants to qualify for a waiver of the job offer requirement. While NYSDOT case and its USCIS decision do not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the EB2 National Interest Waiver under some circumstances. For example, the NYSDOT decision states:

"The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…The petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field."

Q: I filed a concurrent Form I-140 and Form I-485 petitions several months ago. Now, I get a RFE (Request For Evidence) letter from USCIS for my Form I-140 petition, asking for more supporting materials and evidences. Please let me now what may happen for my Form I-485 application if my Form I-140 is rejected after the RFE response?

A: The concurrent Form I-140 and Form I-485 petitions are supposed to permit the alien applicant a number of benefits, including availability of work permit card (EAD), advance parole for international travel, and similar benefits to the accompanying family members. 

Under the U.S. immigration law, the Form I-485 application remains intact unless it is denied as separate from the denial of Form I-140 petition. To prevent the abuse of concurrent Form I-140 and Form I-485 filing, the USCIS instructed its Service Centers to deny all the accompanying applications including Form I-485, Form I-485A, From I-765, and Form I-131 simultaneously, when the USCIS Service Centers deny the underlying Form I-140 petition.

Q: I am a successful foreign entrepreneur. I heard the EB2 National Interest Waiver immigrant visa category for foreign entrepreneurs. Please let me know how to present supporting documents for this kind of Green Card application based on EB2 National Interest Waiver?

A: For foreign entrepreneurs to file EB2 National Interest Waiver (EB2 NIW) petitions, the petition should focus on how to prove the past achievements and entrepreneur activities in the United States, and have provides jobs for U.S. citizens. 

Thus, the alien applicant should have a successful track record as a entrepreneur for the EB2 National Interest Waiver eligibility. The EB2 National Interest Waiver petition for a foreign entrepreneur should not only focus on the "potential" U.S. national interests in future. 

The EB2 NIW petitioner for a foreign entrepreneur can have a variety of ways to prove a particular business achievement, including:

  • evidence of the success of foreign enterprises;

  • developed business plan and can prove that the company has reached the set goals;

  • the current number of employees;

  • business contract or transaction;

  • media attention for the business;

  • detailed business plan in the United States.

Q: As a post-doctor researcher at a U.S. University for more than 3 years, I plan to apply for Green Card in both EB1-Extraordinary Ability (Alien of Extraordinary Ability) and EB2 National Interest Waiver (EB2 NIW) immigrant visa categories with the help of your Green Card DIY application packages. I have over 30 citations for my publications. How could I use my citations as strong evidence for my Green Card application? 

A: When evaluating alien's publication citations and an alien’s research work, U.S. Citizenship and Immigration Services (USCIS) will determine the significance of the alien’s original contribution to the field that resulted in the citations.

To use the citations as strong evidence for EB1 or EB2 NIW Green Card application, the alien applicant should establish the publication's circulation and intended audience. Some citations, especially passing citations, do not suffice. Also, articles that cite the alien‘s work as one of multiple footnotes or endnotes are generally not “about” the alien‘s work. USCIS may not be persuaded that citations of an article authored by the alien beneficiary constitute published material about the alien‘s work.

The alien applicant should include citation report from an online source (GoogleScholar, SciFinder, or the Web of Science). Citation record can help USCIS understand that the field has acknowledged the alien applicant's research, and original research contribution in the field.

In some cases, inclusion of a lengthy list of referenced articles that often accompany published articles might be probative of the alien’s ability, because the alien’s contributions served as a significant, original contribution that spurred the subsequent references and citations.

Q: My Form I-140 immigrant visa application was denied after the Request For Evidence (RFE) response to USCIS. What should I do next? Can I file a appeal of a Motion to Reopen? or file a Motion to Reconsider?

A: A 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:

    * 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.

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.

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.

Q: I am a physician caming to U.S. on a J-1 visa, and I have Medical degree from my home country. After my medical residency program in a large hospital, I started work on H-1B visa under the Conrad State 30 program.  My question for you is: can I apply for a National Interest Waiver to obtain my U.S. Permanent Residency?

A: For foreign physicians, the National Interest Waiver (NIW) is the special Green Card application type for physicians in underserved areas, and you are required to remain in the position for five years. Additionally, unless the position is through the Veteran's Administration, the physician under NIW is only available for pediatricians, general internal medicine, family or general medicine, obstetrics/gynecology, and psychiatry.

Physicians whose employment would be in the “U.S. National Interest” do not need to go through the Labor Certification process. Generally, these physicians may petition for a EB2 National Interest Waiver if they intend to work at least five years in a medically underserved areas (“MUA”) or at a Department of Veterans Affairs (VA) facility. The National Interest Waivers do not require a permanent job offer, and may be filed by physicians who are independent practitioners rather than "employees" of a U.S. company or organization.  A petition for national interest waiver by a physician should include:

1) A full-time employment contract, issued and dated within 6 months prior to the date the petition is filed, for the required period of clinical medical practice, or an employment commitment letter from a VA facility, if the physician is an employee.

2) If the physician will establish his or her own practice, the physician must submit a sworn statement committing to the full-time practice of clinical medicine for the required period, and describing the steps the physician has taken or intends to take to establish the practice;

3) Evidence that the physician will provide full-time clinical medical service in a medically underserved area and in a medical specialty designation by the HHS or in a VA-facility;

4) A letter from a U.S. federal agency or state public health department stating that the foreign physician’s work is or will be in the public interest.  These letters should reflect knowledge of the physician’s qualifications and describe the agency’s background and interest in medical affairs.

4) Evidence of satisfaction or waiver of the J-1 home residency requirement, if the foreign physician has received medical training in the United States as a J-1 exchange visitor.

Q: What is the A# or A Number? We just send out the Form I-140 package to USCIS Service Center for my Green Card application. When we can get our A#, and what it is used for? Is it same as SSN? and do I need it for my employment authorization?

A: An alien applicant should have a A# 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.

Q: As a researcher in a pharmaceutical company with a PhD degree in Biology and in H-1B status for 2 years, I want to apply for U.S. Green Card in EB1 (EB1 Extraordinary Ability, EB1 Outstanding Researcher) or EB2 National Interest Waiver (EB2 NIW) immigration categories, or apply for 2 categories at the same time. It is very difficult for me to get reference letters form U.S. government agencies or some professional societies. Do I have to get reference letters for those applications? and are there any thing more I should know about the reference letters? 

A: There are many issues to be addressed about reference letters or recommendation letters. First, the reference letters are not required by USCIS. But they can be very useful, and most USCIS examiners for EB1 Extraordinary Ability, EB1 Outstanding Researcher or Professor, or EB2 National Interest Waiver application expect them. 

Some alien applicants may try to avoid the reference letters or recommendation letters for confidentiality purposes, but for others, they are easy to obtain the reference letters. Some professional societies usually do not provide reference letters of their members. In addition, U.S. government agencies will normally not simply prepare a reference letter if asked. So the request of reference letters or “independent letters” heavily favors applicants with connections at government agencies or in professional societies, which may see as unfair for some applicants.

If it is difficult for an applicant to get reference letters or recommendation letters, a more thorough compilation of background materials can offset an absence of reference letters. These materials may include statistics about the area of research, information about professional organizations, awards, journals, etc.

Q: Can I File a U.S. Green Card Application for Myself?

A: We know most of the employment-based immigration categories require a U.S. employer to sponsor the foreign workers for their immigration application (U.S. Green Card Application), there are actually a few immigration categories that allow for self-petition if certain requirements can be met by the alien applicants.

The employment-based first preference (EB1) immigration category has three subcategories, i.e, EB1 Extraordinary Ability (EB-1A, or EB1-EA), EB1 Outstanding Professor or Researcher (EB-1B, or EB1-OR), and EB1 Multinational Executive or Manager (EB-1C, or EB1c). Only one of these 3 subcategories, EB1 Extraordinary Ability, allows for self-petition. This immigration category is available for alien applicants with extraordinary ability in business, science, art, education, or athletics. The alien applicants who may qualify for the EB1 Extraordinary Ability application are generally those who are recognized as being at the top of their respective fields, and who intend to continue to work in that field in U.S.

Another immigration category allowing for self-petition is the EB2 National Interest Waiver (EB2 NIW, or NIW). This immigration category falls within the employment-based, second preference (EB2) immigration category, which is reserved for professionals with advanced degrees and individuals with exceptional ability in the sciences, arts, or business.

The EB2 immigration category generally requires a job offer from an U.S. employer, and it also requires a PERM labor certification approved by the U.S. Department of Labor (DOL). The labor certification process is designed to protect U.S. workers. However, U.S. immigration law allows for a waiver of the PERM labor certification requirement in some cases, in which the alien applicant's contributions for United States are at such a level that the U.S. nation's interests can be better served by not having the alien applicants undergo the PERM labor certification process.

Q: I submitted the EB2 National Interest Waiver petition aboiut 4 months ago. Now, I received the Request For Evidence (RFE) notice from USCIS. It asks my "past record of specific prior achievement ", and to prove my "ability to serve the U.S. national interest to a substantially greater extent than the majority of others in the field." Please let me know how to response the RFE request? Thank you very much.

A: For EB2 National Interest Waiver petition, the alien applicant should establish that he or she has a past record of specific prior achievement with some degree of influence on the field as a whole. The petitioner's previous influence on the field as a whole must justify projections of future benefit to the national interest.

Also, the alien applicant should establish his or her ability to serve the U.S. national interest to a substantially greater extent than the majority of others in the field in some capacity, For example, the alien applicant can submit the following supporting documents to meet the requirements:

* copies of patents and copyrights;
* grant proposals;
* peer reviewed articles;
* performance evaluations for the last five to ten years;
* work that has been evaluated in independent journals;
* awards for work in the field.

Any awards for work in the field must be accompanied by a statement from the institution that granted the award, commenting on the number of awards given, the frequency of the award, the criteria for granting the award, and the number of individuals eligible to compete for the award. 

Q: I am an researcher in chemical engineering. I received a RFE (Request For Evidence) letter form USCIS for my EB2 National Interest Waiver petition recently.  It asks for evidence of my "wide effect on entire field." How to reply this kind of RFE request?

A: When an USCIS adjudicator is unable to complete the processing of an EB2 National Interest Waiver petition without further information, it will send out a Request For Evidence notice to ask required evidence. The alien applicant should read and comply with the request carefully, then submit the evidence to USCIS, and including a copy of RFE letter and place the attached gold sheet on top of the submitted documents.

Q: I received a Request for Evidence from USCIS, now I am anxiety and worry for my immigration application. Please let me know how to act swiftly in responding to an RFE, and give an guidance about how to assemble a convincing Request for Evidence response for USCIS.

A: 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.

Q: I plan to file NIW application, but I am not sure if I could qualify for the NIW requirementds. What are the NIW requirements and NIW eligibility criteria?

A: The National Interest Waiver (NIW) category is in the employment-based, second preference category (EB2). However, in contrast to regular EB2 immigration petitions, National Interest Waiver petitions are exempt from the labor certification and job offer requirement. This means that an applicant who does not have a tenure-track position or permanent job offer could qualify EB2 NIW, and file a self-sponsored NIW petition.

Similar to the EB-1A, Extraordinary Ability Category, the EB2 NIW category requires the applicant to show significant success and contributions in the field of expertise. There must be clear evidence of the anticipated benefits to U.S. from the applicant's work, and these benefits must outweigh the U.S. national interest in protecting U.S. workers through the PERM Labor Certification process.

To establish eligibility for an NIW petition, the applicant must be eligible to file in the EB2 category, which means that an applicant should hold an advanced degrees, or else be an individual with exceptional ability in the sciences, arts, or business. The applicant must also plan to continue work in the field of expertise in the United States. If all these factors are met, the individual must still demonstrate eligibility using the following three-prong test:

1) the applicant must be seeking employment in an area of substantial intrinsic merit;

2) the proposed benefit of the employment should be national in scope;

3) the applicant must show that the national interest would be adversely affected if a labor certification were required.

Q: From a friend, I know that you provide the “Premium Petition Service Program” for EB1 and EB2 NIW petitions. Could you provide a case to help me understand how the Premium Petition Service Program will help us to file the Green Card application.

A: 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 and intrinsic 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.

Q: I am currently working for an NIH Agency under J1 visa, and would like to apply for Green Card under the EB1 Extraordinary Ability (EB-1A) and NIW (National Interest Waiver) categories at the same time. I want to ask my advisor at the agency to write a reference letter for me. Is it true that a NIH employee cannot write reference letter for Green Card application purpose?

A: An officer of a U.S. government agency may not write letters of reference or recommendation letter for submission to another U.S. federal agency in support of immigration visa or Green Card applications, on behalf of the U.S. government agency or on the agency's letterhead. But an employee of a U.S. government agency should be able to write his/her own personal letter on plain stationery for an alien applicant's performance and achievement.

Also, An employee of a U.S. government agency may send the requestor copies of any performance evaluations ("form of evaluation") which was previously prepared describing the person's relative skills, performance, development, etc., or copies of any letters of reference that previously wrote to evaluate his/her suitability for a job at another institution. Furthermore, an official letter may be written by a high level official of the agency (Director or above) as part of the official agency sponsorship for a candidate's employment.

Q: I am an engineer employed at a small company for wireless communication. How to argue that my work is “national in scope” for EB2 National Interest Waiver petition?

A: The National Interest Waiver (NIW) is an attractive option for many immigration applicants. Yet there is still some confusion about what criteria the USCIS uses when considering the NIW applicant. The NYSDOT case that defines the NIW criterion is now used by the USCIS.  In general, USCIS will check three NYSDOT criterion to determine whether an alien applicant qualify for a National Interest Waiver petition.

First, alien applicant must establish that his/her occupation or field of research possesses substantial intrinsic merit. In other words, the alien applicant's work must benefit the U.S. national interest in some way. This criteria can be easily met in most cases, and many Request for Additional Evidence (RFE) has not used this criteria as its basis. 

Then, the alien applicant must show that his or her undertaking or research field will provide a benefit on a national scale.  The applicant’s work must benefit a national goal rather than a local or regional goal. This second criteria, like the first criteria, can be easily met, as long as his/her work is in some way connected to a national scheme.

In one NIW petition case, an Electrical Engineer employed at New York State's power agency, and working on power grid to prevent the massive blackouts that the region recently suffered. USCIS found that since the New York power grid connects to the national power grid, the alien applicant's work was “national in scope.”

Q: After my EB2 National Interest Waiver based Form I-140 approval, how to apply for adjustment of status to get my Green Card?

A: The USCIS application Form I-485, application for adjustment of status, is the form you are required to file to get your Green Card after your application for immigration based on EB2 National Interest Waiver is approved. This form, when filed, must be accompanied by items such as photos, letter of employment, affidavit of support, physical examination record, etc. To help your Form I-485 application, we provide a Complete Do-It-Yourself Package for Form I-485 Application.

An immigrant  visa's "priority date" is established by the date when your Form I-140 application is filed. Normally, the immigrant visa's priority date for EB2 NIW application is "current" for aliens from many countries, but not for aliens coming from China and India. Therefore, you can file EB2 National Interest Waiver based Form I-140 application with Form I-485 application concurrently, if you are not coming from China or India

With the change of immigration regulation, rules on adjustment of status become more restricted. You must provide visa records to establish your and your family member's continuous lawful status since you or them entered the U.S. This can be a serious problem for those people whose status expired prior to their application for immigration was approved.

Q: I am a pharmaceutical researcher, and I have several publications with hight number of citations. Can I file EB1 (EB1 Extraordinary Ability or EB1 Outstanding Professor and Researchers) and EB2 NIW at the same time, to increase my approval chance?
 
A: EB1 Extraordinary Ability (EB-1A) and National Interest Waiver (NIW) are in the "special categories" of green card petitions. We have successfully helped a great many people in the EB1 Extraordinary Ability, EB1 Outstanding Professor and Researchers (EB-1B), EB1 Multinational Executive or Manager (EB-1C), and National Interest Waiver categories.

An alien applicant can actually file in two categories at one time, and may receive approvals in both. This strategy is sometimes used where the alien applicant potentially qualifies in multiple categories, to enhance the likelihood of successful approval. For example, an applicant can receive Form I-140 petition approvals in both the EB1 Extraordinary Ability and EB2 National Interest Waiver categories.

It is necessary to demonstrate and argue an applicant's qualifications in those areas that are relevant to the particular special category. These employment-based categories can potentially provide faster routes to complete the green card process for those who are eligible.

For example, an researcher had a record of conducting groundbreaking research in the field of Biomedical Sciences, specifically in the area of DNA research. He filed in both the EB1 Extraordinary Ability and EB2 National Interest Waiver categories at the same time, and got both approvals. The evidence was presented that he had resulted in advancements of significant benefit to research on cancer; viral infections, such as AIDS/HIV; diabetes; bacterial diseases, such as leprosy, tuberculosis, and pneumonia; and antibiotic resistance.

The supporting letters testified to the fact that this DNA research was considered vital for the development of targets for drugs and vaccines, as well as novel strategies to rectify glitches in DNA and cure diseases. In addition to improving the health of U.S. citizens, it is argued that his research work also benefits the U.S. environment, economy, and national security, as evidenced by its funding and support through the National Institutes of Health (NIH) and the U.S. Department of State (DOS).


 


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Petition Process of EB2 National Interest Waiver (NIW)
National Interest Waiver (NIW) Petition Criteria Analysis
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Some Approved EB2 NIW Immigration Application Cases
National Interest Waiver Application for Entrepreneurs
William's Answers for EB2 NIW Application Questions
Do-It-Yourself Package for NIW Green Card Application
EB2 National Interest Waiver (NIW) Green Card Application
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