Changing Jobs After National Interest Waiver Approval

The National Interest Waiver is a great way for entrepreneurs, doctors, engineers, and even accountants to bypass obstacles along the path to a green card. However, many people want to know if changing jobs after National Interest Waiver approval will affect their green card status in the U.S. If that’s you, keep reading to find out more.

EB-2 Background

In order to understand the ins and outs of the National Interest Waiver (NIW), we must first take a look at the reason for applying for one in the first place. In all green card cases (with the exception of the EB-1A), the first step is to acquire a PERM Labor Certification, which involves having your employer go through a recruiting process to make sure that no qualified U.S. workers are available for your position.

As an entrepreneur, doctor, or self-practicing engineer, you may not have an employer that can acquire a PERM on your behalf. The National Interest Waiver is a way for EB-2 applicants (i.e. people with advanced degrees or exceptional ability in their field) to bypass the PERM Labor Certification requirement and self-petition for a green card without an employer.

Changing Jobs after National Interest Waiver Approval

Who Qualifies for a National Interest Waiver?

Not everyone who applies for an EB-2 green card is eligible for an NIW. Those who wish to go around the PERM requirement need to demonstrate that their work in the U.S. will be in the national interest. The most recent set of criteria are:

  1. You must show that your enterprise will have a positive impact on the U.S. economy, workforce, society, or infrastructure.
  2. You must be able to prove that you are able to develop your enterprise. Evidence for this could be found in your educational background, past experience, or current progress in your enterprise.
  3. You must be able to convince the USCIS that the United States would stand to benefit from waiving the PERM requirement as opposed to enforcing it.

It is important to note that, because doctors and physicians tend to automatically fulfill all three criteria, there is a different set of rules that must be fulfilled for those in that occupation. These are:

  • You must be a practicing physician in one of these areas: family medicine, internal medicine, pediatrics, obstetrics, or psychiatry.
  • You need to work for five years in a medically underserved area in the U.S.
  • You will need to obtain a statement from the state department of health or another government agency (such as the VA) that details your qualifications and that your work would be in the public interest.

Now that we know exactly what an NIW is and how to obtain one, we can see how the rules might allow changing jobs after national interest waiver approval.

Changing Jobs After National Interest Waiver Approval

If you are in the process of obtaining an NIW for your EB-2 green card, then changing your job may require that you file a new I-140 as well as a new application for your NIW. However, if you are changing jobs after National Interest Waiver approval, then you may encounter difficulties with proving that your new occupation is in the national interest.

On the whole, most people who change jobs after National Interest Waiver approval do not encounter difficulties provided that they stay within their field. As long as your new job is identical or very similar to the job that you used for your NIW, you should be able to transfer with the help of an immigration attorney.

Things to Consider Before Changing Jobs

The first thing is to determine if your job is in the national interest. There aren’t particular types of work that are automatically considered to be in the national interest. However, jobs that are related to technology development and scientific research are typically some of the most beneficial to the U.S. economy. 

However, that does not mean the new job must be in either of those career paths. You can switch to any career of your choice as long as you can provide convincing evidence to prove that what you are doing is benefiting the U.S. economy or general wellbeing.

What If I Want To Work Outside My Field?

We have seen several cases of people who want to leave their current job to work in an entirely different field. This is a very difficult situation as you will not only need to prove that your new enterprise is in the national interest, but you will also need to prove that you are qualified to advance the enterprise.

Here is an example.

Ivan had his NIW approved so that he could work as an architectural engineer in the U.S. However, he soon loses interest in the job and instead desires to become an electrical engineer instead. Ivan will need to prove that he is qualified to be an electrical engineer through his educational background, experience, or past successes.

While it is not impossible, there are few people who would be able to convince the USCIS of their ability to develop enterprises in different fields that will have a substantial positive impact on the U.S. If this is the route that you wish to take, it is highly recommended that you work very closely alongside an immigration attorney to make sure that your case is waterproof.

It is important to note that physicians must work in their field in an underserved area for the first five years of their stay under EB-2 status in order to qualify for an NIW. Therefore, they would not be able to change jobs outside their field after NIW approval.

It also stands to reason that few physicians would be able to claim expertise in more than one specialized area of medicine. Because of these factors, changing jobs after your NIW is approved is only possible if you stay in your original field of expertise.

Frequently Asked Questions

Can I change employers after my NIW approval?

Yes, you may change employers after your NIW has been approved. The NIW allows you to self-petition for your EB-2 green card, meaning your status is not tied to a particular job or employer, unlike employer-sponsored categories. What is important is that you continue to satisfy the core requirements of the NIW, which includes advancing your proposed endeavor and that the proposed endeavor continues to be of national importance to the United States.

I have a pending EB-2 PERM filed by my employer. Can I still file an EB-2 NIW?

Yes, you can still file the NIW application. The fact that you have a pending PERM application doesn’t stop you from pursuing an NIW petition. The PERM and NIW are two different cases, handled by different agencies. USCIS and DOL treat each petition individually, which means one can submit multiple petitions under various categories simultaneously and the decision on one petition will not affect the other. In fact, it is advantageous to do so because if one petition is denied, chances are the other one will be approved. The only implication is that there is a nonrefundable fee attached to each petition you file. If you can afford it, you can file as many petitions as you want.

Do I need to have a Ph.D. to qualify for NIW?

No, it is not mandatory to have a Ph.D. Although the NIW requirements, as in the Matter of Dhanasar, state that a petitioner’s education background is one of the factors that can help determine if they are well-positioned to advance their proposed endeavor, it doesn’t stipulate a Ph.D. as a requirement. 

In fact, many successful NIW applicants apply without a Ph.D. VisaNation Law Group has helped many of their clients process and acquire their NIW green cards without a Ph.D. Remember that the NIW has two major eligibility routes: having an advanced degree or having exceptional ability in your field. An advanced degree simply means anything higher than a bachelor’s degree and does not mean you need a Ph.D. The most important thing is to present your evidence to USCIS in a convincing way. 

What is the most important factor in proving NIW eligibility?

Advocacy is the most important factor in processing the NIW petition. In other words, how you present or argue your case. Since there is no particular job or talent that definitively determines national importance, it is then left to every petitioner to prove their eligibility based on what they possess. There have been many qualified petitioners with outstanding achievements whose petitions were rejected because of poor presentation. At the same time, there have been people with lesser achievements whose petitions were approved because of their advocacy. 

If your presentation is too long and incoherent, the adjudicating officer may find it difficult to identify your merits and qualifications. In the same vein, if the presentation is too short and unconvincing, it will be difficult to persuade the adjudicating officer. This is why you must be sure to do your due diligence and let your case strike the right balance. It is recommended that you engage the service of an experienced immigration lawyer to improve your chances of petition approval.

What is USCIS two-part evaluation for an NIW petition?

USCIS uses a two-part evaluation method to determine whether the evidence submitted by an NIW petitioner establishes that the “proposed endeavor will be national in scope and whether the national interest will be adversely affected if a Labor Certification were required.” First, USCIS will evaluate the submitted evidence to decide which evidence meets the required regulatory criteria. Second, they will evaluate the submitted evidence together to make their final decision based on the total requirements for NIW.

If my I-140 for an NIW is approved, when can I file I-485 to adjust my status? And how do I continue to work lawfully while the petition is pending?

You may file your I-140 for NIW and I-485 for status adjustment concurrently (together at the same time). You may also decide to file them separately by submitting your I-485 anytime after the submission of I-140.

To continue working legitimately while the petition is pending, you may file Form I-765 for an employment authorization document together with your I-485. While the I-485 may take several months or even years before a decision depending on your priority date, the I-765 can be processed within a few months allowing you to continue using it to work or even seek employment.

Another option is to ask your employer to file an H-1B on your behalf. The only issue is that will require going through the H-1B process, and there may be a delay. So, getting an EAD through I-485 likely remains your best option. You may also file Form I-131 together with your I-485 to get advance parole, which serves as your valid travel document while the I-485 is pending.

I changed careers after getting my green card through NIW. Now I want to apply for citizenship. Will my change of career affect my naturalization application?

Again, the issue isn’t about the change of career or job, but whether you maintain the NIW requirements in your new career. If you can prove that your new career is of national importance and you have consistently advanced your chosen endeavor, you shouldn’t have a problem regarding that during your citizenship application. But if you are not sure of this, it is recommended that you contact an immigration expert.

How VisaNation Law Group Can Help

Getting an EB-2 NIW is a delicate process. From the experience of several of their clients, choosing the correct evidence to convince the USCIS that your endeavor is in the national interest of the U.S. is extremely difficult without the help of a qualified attorney. Don’t go it alone, be sure to hire an expert to help you with your case.

VisaNation Law Group’s immigration lawyers have a long track record of success in helping people get their EB-2 green cards with the NIW or without it. Whether you need to find the right documents to send to the USCIS or you are changing jobs after National Interest Waiver approval, their attorneys are ready to help you.

To get in touch with one of VisaNation Law Group’s lawyers, you can fill out this simple contact form and schedule your comprehensive consultation today.