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EB2 NIW | Frequently Asked Questions

NIW Frequently Asked Questions

A National Interest Waiver or NIW petition permits a foreign national to self-petition and bypass the customary route which includes getting a permanent job offer and the accompanying labor certification. With an NIW you essentially get to skip the labor certification requirement in light of the “national interest for the U.S.” In order to be eligible for an NIW, you must meet a set of specific requirements.

In addition to the aforementioned criteria, a beneficiary must also demonstrate that they are seeking work within an area of substantial merit to the United States, that the beneficiary’s proposed activity will be of national benefit and that requiring a labor certification will adversely impact the national interest.

IMPORTANT UPDATE: As of December 27, 2016, the Administrative Appeals Office has amended the criteria involved with receiving an EB2 NIW under the new decision, Matter of Dhanasar.

EB2 NIW Frequently Asked Questions

Below is a list of EB2 NIW frequently asked questions. Due to the complexity of NIW cases, it’s best to consult an EB2 NIW lawyer for further details and specifics regarding your personal situation.

What are the advantages of an NIW as opposed to a regular EB-2 green card?

The National Interest Waiver allows the beneficiary to self-petition, bypassing the requirement for a job offer from a U.S. employer and a PERM Labor Certification. The PERM is designed to protect the jobs of U.S. workers and prevent systematic outsourcing for cheaper foreign labor.

You need to prove that it would be in the nation’s best interest to waive the Labor Certification requirement as opposed to protecting U.S. jobs through the PERM. This is why the regulations state that the U.S. must benefit “on the balance”, meaning that the positive impact that your endeavor will have outweighs the possible negative impact of waiving the PERM for you.

Can I get an NIW if I work in a private field? 

This question frequently gets asked by individuals who work in a private industry. While many have difficulty providing evidence of national interest if the work is benefiting a private entity, it’s not entirely impossible.

There have been cases where an individual who works in a private field has been able to skip the labor certification process by demonstrating that there were federal benefits associated with their employment. This is because the USCIS prefers to use the concrete evidence of previous accomplishments over the vague and hazy predictions of your future endeavors.

These cases tend to be harder to prove, however, so it’s best to seek the advice of a qualified immigration lawyer.

Can I Qualify for an NIW If I Do Not Have any Awards In My Field?

Due to the flexible characteristics of the NIW, you may be able to qualify without having received awards in your field. Proof of outstanding achievements add much to strengthen your case and may be the difference between an approval or a denial, it is not grounds for denial by itself.

What does “substantial Merit” refer to? 

You likely noticed that one of the requirements to have an NIW waived is for the work to have substantial merit. When an EB2 NIW attorney reviews your qualifications he or she will be able to tell you if your endeavor qualifies as having substantial merit. Most occupations related to science or technical work fall under this category.

But what exactly does “substantial merit” mean for the NIW?

The term “substantial merit” is used to describe endeavors that have or will have a marked positive impact in areas like science, technology, business, health, society, culture, education, or infrastructure. The greater the area of positive impact, the greater the likelihood of approval for your NIW.

If I was denied for a labor certification, can I apply for an NIW? 

Your previous denial should not have an impact on the outcome assuming you meet the other qualifications for a National Interest Waiver. This is because the requirements for a PERM application have little bearing on the requirements for an EB-2 NIW.

Should I Apply for an NIW if I AM Applying for EB1 Status?

The EB1 green card allows applicants to self-petition and does not require a job offer or LCA in order to qualify. Therefore, an NIW may not be necessary. However, because applying for multiple green card statuses can increase the odds of approval, it is important to consult with your immigration attorney to see if an NIW would be advantageous in your situation.

Do I have to live in the U.S. to apply? 

No. You are not required to be residing in the United States to apply. For example, an award-winning researcher in Russia who won acclaim and recognition for their impact could be considered sufficient evidence for an NIW.

How many support letters are necessary for my case?

Support letter help to backup your NIW case if they can demonstrate that you’ve had an impact within your respective field and that you have public record of your work’s benefits. You can ask individuals including high-level management, colleagues and others who worked in close proximity. Remember, these are not required but in particular cases, they may be helpful.

Are artists and musicians able to apply? 

These individuals could receive approval for an NIW assuming they fit the other criteria and were able to provide sufficient evidence. However, attempting to obtain an NIW through these fields is very difficult as it is not easy to prove that your endeavor will ahve a significant positive impact on an aspect of American life. Work closely alongside your attorney to learn if this is the right path for you.

Should I apply for NIW if I’ve already applied under other classifications? 

You can apply under multiple classifications exclusively making your chances of approval will be higher with more than one petition pending. Be aware that if applying in other categories that require a labor certification, the process may be lengthier.

Do I have to have letters of recommendation for my EB2 NIW?

While having letters of recommendation is not an official requirement for the NIW, very few petitions are approved without them. They carry significant weight, especially when they are written by experts in your field that have never worked or collaborated with you.

These letters should describe your work and your contributions in a way that is easily understood by the layman. This is a great way to show that your endeavor will have a positive impact on the United States.

Am I allowed to use the same letters of recommendation for my NIW that I previously used for my EB-1 petition? 

This is generally not recommended since the content of the letter demonstrating the respective criteria are different.

Do I have to stay in the same industry as my NIW case after it’s approved? 

Yes, you are required to work in the same field that benefits the national interest of the country. If you change areas, you risk having your I-485 denied if it’s still under process.

I Am Self-Employed, Do I Need an NIW?

Yes, you do. Under DOL regulations, you cannot obtain a Labor Certification if you are self-employed and do not have an official job offer. Thus, you need to qualify for an NIW in order to apply for an EB2 green card. This may also apply to you if you own a large amount of stock in the company or are a relative of the employer.

How do I prove that I am in a position to advance the endeavor?

The USCIS wants to know that you not only have an endeavor that will benefit the nation, but also that you have the potential to make it succeed. It is important to note that you do not have to prove that your endeavor will succeed, only that you are capable of success.

There is a variety of evidence that can be used to support your ability to advance the endeavor. You could demonstrate that you’ve acquired an appropriate specialized degree in the field of your endeavor. You could also show that you have had success in the past in a similar endeavor or that you have made substantial progress in your proposed endeavor.

In lieu of these things, you could present a detailed plan for the success of your endeavor. Work with your immigration attorney to determine which aspects of your professional career can be used for your EB2 NIW case.

What is the NIW Processing Time?

Processing time for NIW applications typically run between 3 to 9 months although this time depends on the assigned USCIS Service Center and the adjudicating officer. Processing times vary as USCIS evaluates each application and supporting evidence on a case by case basis. It’s best to consult an NIW green card lawyer who can give you a full breakdown of your case.

How Out Immigration Attorneys Can Help

If you still have questions after reading the aforementioned EB2 NIW frequently asked questions:

  • The EB2 NIW lawyers can help you determine whether you are eligible based on the government mandated criteria.
  • We have significant experience with complex employment immigration cases and are prepared to assist you with any complexities that may arise with your NIW case.
  • It’s necessary to note that these are just broad answers to EB2 NIW frequently asked questions. To get the most accurate answer it’s best to consult a qualified attorney.

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