EB2 NIW Questions and Answers, Questions and Answers for EB2 National Interest Waiver (NIW)

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:

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.

To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification for the underlying EB-2 visa classification, as either an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business.

Because this classification requires that the individual's services be sought by a U.S. employer, a separate showing is required to establish that a waiver of the job offer requirement is in the national interest.

Section 203(b) of the Act sets out this sequential framework: Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability.

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.

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:

A: While neither the statute nor the pertinent regulations define the term "national interest," USCIS has set forth a framework for adjudicating national interest waiver petitions. After a petitioner has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion, grant a national interest waiver if the petitioner demonstrates:

Q: What 3-prong standard does the USCIS take to determine an EB2 National Interest Waiver in Matter of Dhanasar?

A: The first prong of Matter of Dhanasar, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, USCIS will consider its potential
prospective impact.

The second prong of Matter of Dhanasar shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, USCIS will consider the factors of the individual's education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.

The third prong of Matter of Dhanasar requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. In performing this analysis, in light of the nature of the foreign national's qualifications or the proposed endeavor, USCIS may evaluate factors such as:

In each case, the factors considered must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

In announcing the Dhanasar framework, USCIS has vacated its prior precedent decision, Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).

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.

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?

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:

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:

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:

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?

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:

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.

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:

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:

If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

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:

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:

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.

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 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:

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.

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.

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?

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.

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.

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.

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.

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:

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.

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

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:

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?

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:

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:

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:

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:

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:

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:

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:

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:

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?

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).

Q: Can I Self-Petition for U.S. Green Card while Outside the United States?

A: In two immigrant classifications, the foreign applicants are not required to have a U.S. job offer, and may self-petition for U.S. Green Card - the foreign applicants do not need an U.S. employer to sponsor them. These two categories are:

Q: I am in the process to file EB1 NIW petition. What supporting evidence will best show that the foreign national will significantly contribute to the national interest? Do I have to have reference letters or many publications and citations?

A: The reference letters or recommendation letters are very important for EB2 National Interest Waiver (EB2 NIW) petition. The independent reference letters from those who have never worked or collaborated with the alien applicant will carry much more weight with the USCIS than reference letters from dependent recommenders.

The reference letters should discuss the alien applicant's research contributions and their significance, and should comment directly on the benefit of alien applicant to U.S. The reference letters are also a great opportunity to demonstrate the implementation of the alien applicant's work. A reference letter from someone who has utilized the alien applicant's work, and can explain how they have done so is a great way to strengthen an EB2 NIW petition.

Unlike EB1 Extraordinary Ability petition (EB-1A or EB1-EA), the standards of EB2 National Interest Waiver petition are flexible. There is no requirement of minimum number of publications and citations. While frequent citations can certainly bolster a researcher's claim to have influenced the field, the lack of frequent citation is not a bar to eligibility where other objective evidence of the petitioner's influence exists.

Also, merely being cited substantially does not by itself establish the petitioner's eligibility for EB2 National Interest Waiver. Original and significant contribution to the field is an essential consideration for the USCIS to decide on an EB2 National Interest Waiver petition, and establishing the petitioner's contribution relies heavily on strong reference letters. Therefore, the reference letters and the content of these letters are critical to establish your original and substantial contribution in the field.

Q: Is EB2 National Interest Wavier application only for Scientists and Researchers?

A: If you have a Master degree, it will depend your qualification for EB2 National Interest Waiver (NIW) application. An advanced degree or exceptional ability is only the statutory requirements for EB2 NIW petition. In addition to meeting the statutory requirements, you also need to prove that granting you permanent residence is in the U.S. national interest.

It is not true that EB2 National Interest Wavier green card petition is only for scientists and researchers. Although a majority of NIW petitioners are researchers in various fields of science, the law does not exclude individuals working in any specific field or profession. In practice, USCIS has granted national interest waiver to engineers, actors, musicians, painters, movie directors, writers, educators, entrepreneurs, and chefs, etc.

Q: I have a very good and extensive documentation submitted for an EB2 National Interest Waiver (EB2 NIW) petition, but I still get a Request for Evidence (RFE). What I should to do to response the RFE request?

A: Even with the impressive credentials and extensive documentation submitted for an EB2 National Interest Waiver (EB2 NIW) petition, some petitioners still receive a Request for Evidence (RFE) notice from USCIS prior to the approval of the NIW petition.

While many people panic when their cases receive RFEs, there are situations that RFEs are issued even in good NIW petition case, and these NIW cases are often approved following the proper response to an RFE.

In the RFE response, the petitioner should submit additional expert reference letters, some of these letters should come from independent experts.

Also, if the petitioner has published new articles in journals after the original NIW petition submission, the petitioner should include these articles in the NIW response as further proof of qualification for the NIW petition.

Q: In the U.S. Department of State’s monthly visa bulletin, how to understand the "Date For Filing" and "Final Action Date"?

A: To provide those who are stuck in immigrant visa quota backlog with the benefits of a pending adjustment, and to reduce waiting time where possible, U.S. Department of State’s monthly visa bulletin provides "Date For Filing" and "Final Action Date"

Previously, the monthly visa bulletin has served to update one date for each category of permanent residence applicant - the priority date cutoff. This one date determined whether you were eligible to submit your permanent residence application, and whether it was expected that there would be a visa number available, allowing your application to be approved.

Now, the “Date for Filing” determines whether or not you can submit the final immigrant visa application, and the “Final Action Date” indicates whether or not it is expected that an immigrant visa number will be available.

In many cases, the Date for Filing will be well before the Final Action Date, meaning that the alien applicants will be eligible to submit an application for permanent residence well before it is even possible for the government to approve that application.

Therefore, those stuck in a backlog can get benefits of a pending adjustment - apply for a combined EAD/AP card, which provides employment and travel authorization. Immigrants holding an EAD can work for any U.S. employer, which provides significantly more security and flexibility than the employer-specific H-1B petitions that serve as the basis for many immigrant’s employment authorization. For family-based applicants, the EAD may be their first-ever work authorization in the U.S., so getting that earlier is a great benefit.

Also, earlier filing of the final application means that employment-based permanent residence applicants will be eligible for AC21 portability earlier, meaning they can change employers, under certain circumstances, without being forced to re-start their permanent residence application from the beginning.

Q: How to qualify for EB2 National Interest Waiver requirement of "substantial merit and national importance", in the Matter of Dhanasar?

A: For Matter of Dhanasar of EB2 National Interest Waivers petition, USCIS requires that "the foreign national’s proposed endeavor has both substantial merit and national importance."

The Dhanasar’s prong #1 requires substantial merit and national importance - focuses on the specific endeavor that the foreign national proposes to undertake. The substantial merit may be demonstrated in a range of areas including business, entrepreneurialism, science, technology, culture, health, or education. It is possible to establish an alien’s substantial merit without a demonstration of immediate or quantifiable economic impact, although such evidence would be favorable.

To determine whether the proposed endeavor has national importance, USCIS may consider the potential prospective impact. For example, an endeavor may have national importance because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.

USCIS will not evaluate prospective impact solely in geographic terms. Instead, USCIS will look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance.

We provide Complete Do-It-Yourself Package for NIW green card application, which includes all knowledge you need and step-by-step procedures of NIW application, and it has helped many people get their green cards, and it will definitely help your NIW application also. Please visit http://www.greencardapply.com/niw.htm and http://www.greencardapply.com/niw/niw_package.htm for more information about NIW application.

Q: I Have a PhD Degree, Will It Help My Green Card Application?

A: If you are a PhD, PhD student, or a Postdoc, you can apply for a U.S. Green Card on your own, even without an U.S. employer sponsorship. If you are a PhD, PhD student, Post doc, researchers or professors with a PhD degree, our website and Complete-Do-It-Yourself packages can help you get a U.S. Green Card, even without an employer sponsorship or a lawyer's help.

Our website and Complete-Do-It-Yourself packages have helped many PhD, PhD student, and Post doc for their Green Card petition, and successfully obtained their Green Cards in the U.S. immigration categories of EB-1A Extraordinary Ability, EB-1B Outstanding Researcher and Professor, and EB2-NIW National Interest Wavier.

Many requirements for the EB-1A Extraordinary Ability, EB-1B Outstanding Researcher and Professor, and EB2 NIW National Interest Wavier can be met with the PhD study and PhD research projects and publications. Also, many PhD, PhD student, Post doc, or a researchers/professors with a PhD degree have exclusive memberships, scholarly published articles, and acting as a judge for other's work which will help their U.S. Green Card application.

Q: I am work on my immigration petition. I can get some reference letters, but it is difficult for me to get independent reference letters. What can I do.

A: For EB1-Extraordinary Ability (EB-1A), EB1-Outstanding Researcher & Professor (EB-1B), and National Interest Waiver (EB2 NIW) immigrant petitions, the independent reference letters (or recommendation letters) are preferred by the USCIS Immigration Officers.

But this kind of "inner circle" bias can be overcome by other documentation in a petition. For example, petitioners can submit articles they have published in noteworthy trade publications. Also, petitioners can show that their work has been cited nationally or internationally. Additionally, the fact that all the referees in a given petition are personally acquainted with the petitioner can be overcome by the notability of the referees. For example, some referees were researchers at world's leading medical research institutions.

For some pettitioners who are not able to solicit independent recommendation letters for their petitions, the alien applicants can obtain favorable manuscripts from the peer review process. Most scholarly journals put all articles through a peer review process before publication. Many of these journals maintain manuscripts from the peer review process. Peer review manuscripts represent the opinions of unbiased, anonymous observers of the author's research. If they comment favorably on the author's work, they are convincing evidence of the petitioner's accomplishments. In many cases, the USCIS immigration officers can be persuaded by peer review manuscripts.

Q: I received Request for Evidence (RFE) from USCIS for my green card application. How to handle the obstacle in the green card process?

A: Noone looks forward to getting a Request for Evidence (RFE) from U.S. Citizenship and Immigration Services (USCIS). RFEs come without warning and usually give the recipient an unpleasant feeling. An RFE is a written request for more information and documentation that USCIS mails out, if they believe that they do not yet have enough evidence to approve or deny a given application.

USCIS officers have clear guidance on how to review an application for a green card and other immigration applications. The USCIS Policy Manual, in addition to outlining general eligibility requirements, has charts and checklists that officers can use while reviewing applications. These guidance materials define the situations where issuing an RFE is appropriate.

You should know that an RFE generally is not written from scratch. There are RFE templates that give USCIS officers a starting point, then they can customize these templates to request more information and documents for individual applications. Typically, an RFE will have an introductory paragraph or two about the original application. The introduction will state the type of application, the date that USCIS received it, and which office is currently processing it.

USCIS does not follow the mailbox rule, which means that the date you received your response in the mailbox does not matter. You must make sure that USCIS receives your response by the deadline stated in the RFE. Overall, while RFEs can be scary, they are also your last best chance to provide the evidence that USCIS needs to hopefully approve your application.

Please visit http://www.greencardapply.com/rfe.htm and http://www.greencardapply.com/rfe/rfe_package.htm to learn more about the RFE, and how to response it.

Q: My Form I-140 petition based on the PERM Labor Certification has been approved, but I need to wait long time to file Form I-485 petition to get my Green Card, due to the immigration visa availability. Can I file Form I-140 in another category, such as in EB2 NIW - National Interest Waiver, or in EB1-Extraordinary Ability, but also keeo my I-140 Priority Date?

A: If a beneficiary's Form I-140 petition was approved, then beneficiary's second or third Form I-140 petition in difference preference category, such as EB1-Extraordinary Ability, EB1 Outstanding Researcher or Professor, EB1 Multinational executive or manager, or EB2 NIW (National Interest Waiver), may retain the priority date of the approved first petition for any subsequently filed second or third category employment-based petition.

The priority date of Form I-140 petition that requires a PERM Labor Certification is the date the underlying labor certification was officially acknowledged as received by the Department of Labor. The priority date of Form I-140 petition that does not need a Labor Certification, such as EB1 and EB2 NIW petition, is the date the Form I-140 was filed with the U.S. Citizenship and Immigration Services.

In order to apply for permanent resident status, the priority date of the beneficiary's approved Form I-140 petition must be current under the visa bulletin published by the U.S. Department of State. Depending on the petition's preference category and the beneficiary's country of chargeability, the beneficiary may sometimes have to wait years for the Form I-140 priority date to become current and therefore, a retained priority date for a subsequently filed Form I-140 petition may significantly reduce the waiting time in applying for an employment-based green card.

Priority date retention is particularly advantageous to a beneficiary of an approved I-140 petition who intends to move to a new sponsoring employer as it may speed up the immigration process. The rule also benefits Form I-140 beneficiary in a retrogressed category who, through the passage of time, no longer has an open job offer from the original I-140 petitioner by the time the priority date becomes current, but subsequently obtains a new I-140 sponsor.

Q: I have filed my EB1 based Form I-140 petition. What is the procedure for me to get my Green Card after the petition is approved if I am outside of the U.S.?

A: Consular processing is a means through which you may apply for an immigrant visa after your EB1 based Form I-140 petition is approved at a U.S. consulate overseas.

If your petition is approved and you are not already in the U.S., the USCIS will send your approved petition to the Department of State National Visa Center. The National Visa Center will send you a notice of receipt. When visa numbers are available or about to become available for your classification, the National Visa Center will send you another notice indicating when you should submit immigrant visa processing fees and supporting documentation.

Supporting documentation may include the original Notice of Approval; a copy of your filed Form I-140 petition; Notice of Receipt; a valid passport; criminal history, police, military, or prison records; birth certificate; marriage certificate; and birth certificates of children.

When fees and supporting documentation have been received, the National Visa Center will send you a packet of forms and instructions. Upon submission of those forms, the National Visa Center will send you an appointment letter including instructions for the medical exam and indicating when you must appear at a designated U.S. consulate for an interview. After the interview, the consular office will review your application and either grant your visa or request the USCIS to reconsider or revoke your petition.

Q: I am in the process to file the EB2 National Interest Waiver Petition (EB2 NIW). How to prepare the prong 3 of Matter of Dhanasar - balancing factors to determine be waiver's benefit to the United States

A: For the prong 3 of Matter of Dhanasar - balancing factors to determine be waiver's benefit to the United States, the petitioner should submit evidence to establish that, on balance, it would be beneficial to the United States to waiver the requirements of a job offer and thus of a labor certification.

This balance was described in Dhanasar petition case as on one hand protecting the domestic labor supply through the creation of the labor certification process, while on the other hand recognizing that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. USCIS may evaluate the following factors:

Q: I plan to file National Interest Waiver petition by using your NIW DIY package. Is the EB2 visa backlog also applies for NIW petition cases?

A: The National Interest Waiver petition is within the EB2 preference category, and is subject to the same backlogs as other EB2 labor certification cases, even though they may enjoy the benefit of not having to get a labor certification or require employer sponsorship. Nationals from some countries such as India and China, who are applying in the EB2 preference category, are currently subject to a substantial backlog in visa number availability, sometimes referred to as the priority date retrogression.

Especially, the backlog in visa numbers for Indian nationals is measured in years. People from China are also subject to a visa backlog, but the wait time for these individuals is presently shorter. The lack of visa numbers is due to U.S. limits on the numbers of individuals who can immigrate permanently to the United States each year. This is controlled by the issuance of constrained immigrant visa numbers and compounded by per-country limits.

The first stage in an NIW case is the filing of the I-140 Petition with the USCIS. To reach the second and final stage of the green card process, which is either an adjustment of status or a consular processing for an immigrant visa, there must be a visa number available in the particular category and for the country of chargeability.

Q: I am a International medical graduate with two-year home residence requirement, can I apply for NIW Green Card by myself after I get the J1 waiver?

A: The International medical graduates may need meet the the two-year home residence requirement through a waiver based on the support of an Interested Government Agency (IGA). These J1 waivers require three years of service as a physician in certain designated underserved areas.

After the J1 waiver, the International medical graduates can apply for US Green Card, most commonly choose between two options to file and obtain the green card - the NIW and the labor certification-based green card process. Both options are within the employment-based, second preference category (EB2).

One benefit of the NIW petition is the ability of self-petition. While there must be a qualifying job offer forming the basis of the EB2 NIW petition, the employer does not need to sponsor the NIW petition.

Q: I filed my Form I-140 immigrant petition abou 2 months ago, now my job location has moved because of the business requirement. Do I need to file an amended petition to USCIS because of the job location change?

A: Not every change to the Form I-140 petitioner’s name or, in certain cases, the location where the beneficiary is to be employed requires a new or amended petition. Specifically, the petitioner does not need to file a new or amended Form I-140 Immigrant Petition for Alien Workers due to:

1) A legal change in the name of the petitioner, including a petitioner’s business name, if the ownership and legal business structure of the petitioner remains the same; or

2) A new job location, if the new business location and job are within the same metropolitan statistical area of intended employment stated on the permanent labor certification.

After the Form I-140 approval, when the beneficiary files a Form I-485 Application to Register Permanent Residence or Adjust Status with USCIS or applies for an immigrant visa with the U.S. Department of State, the beneficiary may need to document that the petitioner is the same petitioner that filed the petition or that the job opportunity is still located in the area of intended employment specified on the permanent labor certification.

Q: What is difference between O-1 visa and EB1-Extraordinary Ability application? and what is difference between O-1 and other employment related nonimmigrant status, such as H-1B?

A: The requirements for O-1 visa or status are similar to those for the EB1 Alien of Extraordinary Ability (EB-1A), employment based permanent residence category. The difference is that the O-1 visa applies to those aliens seeking a non-immigrant status, while the EB-1A standard is for those seeking permanent immigrant status.

The application processes are also quite different. The application process for the O-1A visa includes the sponsor and/or applicant filing a form I-129 petition with the USCIS. Applicants can expect to wait several months for a decision unless they file by premium processing. In such cases, they will receive a response in 15 days. Once all requirements have been met, the O1-A visa can be issued for up to three years.

The EB-1A goes through the same process as other employment green card applications except there is no filing of a labor certification application with the Department of Labor attesting that there are no available U.S. workers with the requirements for the position (PERM). Due to delays at the Department of Labor not having to go through this process can save over a year of wait times for the green card.

The O-1 visa is distinguished from other employment related statuses in that it applies to more types of work than other areas. For instance, H-1B status is limited to foreign professionals with at least a bachelor's degree for a specialty occupation, which cannot apply to alien artists, athletes or entertainers without such educational background. However, such as artists, athletes or entertainers can apply for O-1 visa/status. Moreover, the requirements of O-1 are much higher than that of H-1B. Also, O-1 visa/status could be obtained by those in H-1B status who have exhausted the full-authorized stay of 6 years.

Q: As a F-1 student, can I change the non-immigrant intent and apply for U.S. Green Card?

A: U.S. immigration law does not bar F-1 status holders from wanting to change their intent once they arrive in the U.S and have resided for a period of time. The USCIS form I-140 and I-485 serves as a legal conduit that allows non-immigrants to change their status to legal U.S. permanent residents or Green Card. While F-1 status holders are not prohibited from wanting to pursue a change of intent from non-immigrant to immigrant, there are certain issues that arise when a F-1 student decides to do so.

One of the most prevalent issues related to a change of intent is USCIS’ notion of preconceived intent or visa fraud. As a general rule, a person cannot have preconceived intent to enter the U.S. for a purpose different from that permitted under the F-1 visa.

To change your status from an F-1 student visa to a U.S. Green Card, you may self-petition for an EB-1A or EB2 NIW Green Card, receive the sponsorship of your employer, adjust your status to a dual-intent visa such as H-1B, L1 or O1 visa, become an investor, or marry your love one who happens to be a U.S. citizen or a lawful U.S. permanent resident.

Some people are eligible to apply for an EB-1A or EB2 NIW Green Card after completing a course of study in the United States. EB-1A visas is available to people with extraordinary abilities in the arts, sciences, education, business or athletics, may be a way for you to gain lawful permanent residency and, eventually, citizenship in the United States.

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