What is EB2 National Interest Waiver Green Card Application

1. Three Ideal Options to Apply for a U.S. Green Card

A National Interest Waiver, or NIW, is an employment-based, second preference immigration application. It is so named because it asks that the otherwise required Labor Certification requirement be waived "in the U.S. national interest."

For applicants with an advanced degree - masters or above, there are three ideal options to apply for a Green Card. These options are in different classifications of Employment-based (EB) immigration, including:

Many talented scientists and researchers should have better chances when they apply for an attractive job position. However often times, they failed just because they do not have a U.S. Green Card. Some people with advanced degree do not know how to apply for U.S. Green Card in above three preferred immigration categories, but instead, these people apply for a Labor Certification. However, choosing Labor Certification is not the best strategy for people who may qualify for one of the above three ideal immigration classifications.  

To qualify for EB2 NIW, an alien applicant needs to demonstrate that his or her work is in the National Interest of United States, and the alien applicant should have an advanced degree and have exceptional ability in sciences, arts or business. The National Interest Waiver Green Card application can either be filed by an alien applicant, or be sponsored by  a U.S. employer. An alien applicant may also file additional Green Card applications in other categories, while a National Interest Waiver petition is pending. 

2. What is National Interest Waiver

A 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 national interest of United States." Thus, a beneficiary of a successful NIW petition is exempt from the requirement that his or her employer first obtain an individual Labor Certification from the U.S. Department of Labor. 

The Immigration Act of 1990 created several new employment-based immigration categories. Section 203(b)(2)(A) includes members of the professions holding advanced degrees and aliens of exceptional ability in the arts, sciences or business. Popularly referred to as EB2, this category normally requires a permanent job offer and an approved Labor Certification.

The Immigration Act of 1990 also created a means of avoiding these requirements, by including a provision for a "national interest" waiver of the requirement of a job offer and a Labor Certification. The Act states that "the Attorney General may, when he deems it to be in the national interest, waive the requirement...that an alien's services in the sciences, arts or business be sought by an employer in the United States." The National Interest Waiver applies to both sub-categories of EB2, members of the professions holding advanced degrees and aliens of exceptional ability.

Since most scientists, researchers, international students, and university teachers have at least a Master's degree, the waiver provision can be extremely beneficial to the academic community. United States Citizenship and Immigration Services (USCIS) also recognizes that a Bachelor's degree plus five years of progressive work experience in the area of specialty is equivalent to an advanced degree.

3. USCIS Suggested Seven Factors for National Interest Waiver Petitions

A person qualifies for the EB2 National Interest Waiver category 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 USCIS has not established specific criteria for approving NIW petitions, many USCIS examiners rely on a decision in a case decided previously. 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.

Typically, alien applicants should establish themselves as having some unique and exceptional skill, experience, or knowledge, that sets them apart from their professional peers. Documents stating that he or she only possesses a certain level of competence will not be sufficient to receive a National Interest Waiver approval. Rather, a proficiency that is greater than mere competence is expected for those seeking a National Interest Waiver petition approval.

All NIW applicants must show that, if granted permanent residence, they will substantially and prospectively benefit the national economy, cultural or educational interest or welfare of the United States.  At the time of adjustment to the Green Card, an applicant is likely to be asked to demonstrate that he or she is continuing to work in the field of expertise presented in the original NIW application. 

Further, a NIW petition must clearly demonstrate that the alien applicant's past record would project the alien's future benefits to the U.S. national interest. Recommendation Letters testifying to the alien's unique skill, experience, knowledge, or expertise will be examined by the USCIS and the credentials of the individuals who write such letters will be reviewed to determine whether they are qualified to make such evaluations.

4. The Advantages of Applying for National Interest Waiver

The advantages of National Interest Waiver petition include:

1) No need for a permanent job offer: An alien applicant can do self-petition for the NIW application, without an permanent job position in United States, which means that the alien applicant does not need a specific U.S. employer’s sponsorship or even a job offer for his or her Green Card application. 

2) No need for Labor Certification: The Labor Certification is a long process. Therefore, bypassing the Labor Certification process is really an advantage of NIW, and it makes NIW faster than other immigration categories requiring the Labor Certification. Also, many employers are reluctant to sponsor a foreign employee’s Green Card application, this is especially true during the U.S. economic descending time. In such a situation, an employer may not want to begin a Labor Certification process, and an alien cannot apply for a Labor Certification without an employer’s sponsorship.  

3) No need to be tied to a specific employer: The alien applicant can change job at any time during the Green Card application process, the only requirement is that the alien applicant should stay in the same field during the Green Card application process. 

For a person who may qualify for NIW, applying for this immigration category is a much better choice than Labor Certification. The NIW petition does not require Labor Certification. Furthermore, an alien applicant can do self-petition for the NIW application. Without the requirement of Labor Certification or even a job offer, an NIW applicant also enjoys much greater freedom in employment. The alien applicant does not need to meet some very strict conditions set otherwise in the Labor Certification, such as:

In other words, you do not need to worry about a failure to satisfy the conditions set by Labor Certification and the jeopardy of your Green Card application process. You do not have to be stuck with your current employer for several years before change to another employer. The situation is under your control, not your employer.  

 

 

 

 

 

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