Securing a National Interest Waiver (NIW) for EB-2 visas is arguably one of the most difficult, however, a high-result immigration option for hiring foreign workers. The United States employment-based green card application can be very difficult due to the lengthy process required of both foreign applicants and U.S. prospective employers. It typically involves three stages, which are: the job offer, labor certifications, and permanent resident petition.
These three phases have distinctive requirements and the waiting can sometimes be exhausting for applicants. However, for those who can prove their worth, some of these steps can be circumvented, expediting the process, thanks to the provision for the National Interest Waiver (NIW) in the Immigration Act. Although this area of immigration law is highly complex, it also has a high reward since EB-2 green card is very valuable. Schedule a consultation with our senior immigration lawyer to discuss the employment immigration strategy for your business.
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What is the National Interest Waiver for EB-2 Visa?
The National Interest Waiver petition is a request seeking that the labor certification requirements of an employment-based visa be waived because doing so will be beneficial to the United States overall. If granted, you will be able to bypass the DOL process and may also self-petition for your EB-2 without being sponsored by a U.S. employer.
Who is Eligible for a National Interest Waiver?
You may be eligible to request a National Interest Waiver if you meet at least three out of these EB-2 eligibility criteria and are able to give convincing reasons why the USCIS should forego the generally compulsory labor certification in your own case.
Why You Need an EB-2 NIW Lawyer?
If you are looking for a National Interest Waiver for your EB-2 visa, an experienced immigration lawyer can make a big difference. Here are some reasons why hiring an EB-2 NIW lawyer in 2023 is essential:
- NIW is a complex legal concept – NIW is not a straightforward immigration category, and it requires a thorough understanding of immigration law and its application to your specific case. An immigration lawyer who specializes in EB-2 NIW can provide you with the expertise and guidance you need to navigate this complex legal concept.
- Your chances of success increase – The EB-2 NIW application process is highly competitive, and the USCIS has stringent eligibility requirements. With an experienced lawyer, you can ensure that your application is properly prepared and presented to the USCIS. This will increase your chances of success and help you obtain your EB-2 visa with a National Interest Waiver.
- Tailored legal advice – An EB-2 NIW lawyer can provide you with personalized legal advice that is tailored to your specific case. They can review your qualifications, work experience, and research accomplishments to determine if you qualify for the NIW. They can also advise you on the best strategy for presenting your case to the USCIS, including the supporting documents that are required.
- Avoid costly mistakes – An immigration lawyer can help you avoid expensive mistakes in the application process. Even a tiny error or omission can result in a denial of your application or a delay in the processing time. With an experienced lawyer, you can avoid these pitfalls and ensure your application is completed correctly.
- Save time and stress – Preparing an EB-2 NIW application can be time-consuming and stressful. An immigration lawyer can handle the application process for you, allowing you to focus on your business. They can also keep you informed of any updates or changes in the application process, so you don’t have to worry about missing any deadlines or requirements.
National Interest Waiver Process
While the criteria might appear daunting, approaching the process from the right perspective will make a big difference in your application process and help avoid denial at the end. The following guidelines will help you in getting approval for your NIW petition:
Consult an Experienced Immigration Attorney
Though there is no law compelling you to hire an attorney for your immigration, however, judging by the increasing denial rate of employment-based green card applications recently, it is always best to be guided by a professional. Having legal counsel for the NIW process will save you time, money, and help prevent denial.
The NIW process contains several aspects that must be fulfilled and a single mistake could lead to months or years of delays, not to mention outright denial. To start with, an attorney will look at your qualifications, past achievements in your field, and the nature of your proposed endeavor and help you determine if getting an NIW is your best available option. Schedule a consultation with our senior immigration lawyer to discuss whether EB-2 NIW is right for you.
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Prepare the Supporting Evidence
The required evidence depends on the specific field of your proposed endeavor along with your academic qualification, job experience, and biographic data. Some of the generally required items for the NIW process include:
- Copies of a completed ETA 750 form
- A completed I-140
- A copy of your passport
- Proof of your current non-resident status in the U.S. if applicable
- A copy of your most recent I-94 (front and back)
- Recommendation letters
- A copy of your highest academic qualification with records or transcripts
- A copy of your resume
- Evidence of peer review
- Evidence of citation record of your work
- Professional journal in which your work(s) has been published
- NIW petition letter
Preparing Your National Interest Waiver Supporting Evidence
These documents must be presented, drafted, and addressed according to the USCIS requirements to avoid rejection. Inadequate preparation of your NIW petition and documents is a direct route to getting a Request for Evidence (or RFE).
For instance, your letters of petition and recommendation as well as your resume, must demonstrate your eligibility for an NIW and show that your request meets each of the three prongs of the National Interest Waiver requirements. An experienced NIW will help you do this.
Our Experience with EB-2 NIW Visas
We’ve helped numerous U.S. companies hire international workers by securing NIW for their EB-2 visas. Getting the best immigration outcome is our number one priority for every client. Obtaining EB-2 NIW is one of our employment immigration specializations, and this is what Shilpa Malik, our leading business immigration lawyer, had to say about our practice in this area:
“In my experience, EB-2 NIW green cards are one of the most sought-after employment immigration pathways for international workers. Our personalized approach, attention to detail, and expertise in obtaining NIWs can increase your chances of success and save you time and stress. Let us help you achieve your employment immigration goals.”
We recently had an EB-2 NIW success story where we helped a senior medical physicist with multiple degrees and certifications and ultimately received approval for an EB-2 green card via a National Interest Waiver (NIW). The client was initially declined for EB-1A, which made out NIW application difficult. However, after the firm gathered the necessary evidence and convincingly argued the case, our client’s employment immigration proceedings were a success.
Understanding the National Interest Waiver Requirements: Matter of Dhanasar, 2016
Prior to 2016, the National Interest Waiver petition had been adjudicated using the 1998 NYSDOT criteria, which were later found to contain some ambiguity. The process was repurposed by the Administrative Appeals Office (AAO) decision in the Matter of Dhanasar, 2016.
Now, to satisfy the requirements for the National Interest Waiver, you must be able to prove that your proposed endeavor in the U.S. meets the following three crucial elements:
The First Prong: Substantial Merit and National Importance
For you to be considered for an NIW, the first criterion is proof that your proposed endeavor in business, entrepreneurship, technology, science, culture, education, or health is of substantial merit and national interest.
The endeavor must be beneficial to the United States as a whole, and not local or regional in nature. Though the AAO ruled that an applicant does not necessarily have to show the endeavor’s economic benefits to the U.S., its potential still needs to be established. You will need to convince the USCIS that your employment or entrepreneurship, though it may be within a particular location, will eventually be beneficial on a national scale either directly or indirectly.
The Second Prong: National in Scope – Advance the Proposed Endeavor
This second prong is to determine whether you are well-positioned to advance the endeavor. The USCIS decision on this will be based on your skills, education, experience, and past achievements in the proposed area of specialization. It will also look at a plan for future activities, progress towards realizing the proposed endeavor, and the interest of those who will benefit from the endeavor such as potential users, customers, investors, as well as other individuals or entities. Satisfying NIW requirements can be extremely difficult. Schedule a consultation with our senior immigration lawyer to learn more about NIW and employment immigration options for your business.
The Third Prong: It is in the U.S. National Interest to Waive the Labor Certification
Obtaining a PERM Labor Certificate is the first crucial requirement for most employment-based U.S. visas. This is to protect the interest of both foreign and U.S. workers. The U.S. Department of Labor created the mandate to ensure all alien workers are treated fairly by their employers.
The office is interested in the contracted agreement between a prospective employer and the foreign national applicant to ensure that the same compensation and favorable working conditions deemed for U.S. workers are given to the applicant.
In the same vein, the PERM protects the jobs of U.S. workers by ensuring that an alien’s proposed employment will not adversely affect the interest of the U.S. workers. Thus, an EB-2 visa can only be granted provided that there are no qualified U.S. workers who are interested in the position.
However, in a situation where the national interest is involved, this requirement can be waived. You must prove that the national interest would be affected if you are subjected to the labor certification application process. You may also need to show how it will be against the general national interest if the employer were to be denied your service and the job were to be given to a less-qualified U.S. worker. The USCIS will look at your petition and consider whether its derivative benefits to the U.S. truly justify the requested waiver. It will also consider if your proposed contribution to the national interest is urgent enough to warrant waiving the labor certification process.
Meeting the Three-Prong Requirements for National Interest Waiver
If you are an employee, you can prove your job to be of national importance by the potential, experience, qualifications, past achievements, and location of your job offer. For example, a physician’s practice would be considered of national importance if he or she agrees to work in an underserved area to help improve the quality of life of U.S. residents.
Also as an entrepreneur, a well-detailed business plan that emphasizes the number of U.S. workers your business will employ, the proposed social responsibility of your business, and every other key feature of the investment will be helpful in this regard.
Though the Matter of Dhanasar has brought about positive results and a clearer understanding of the NIW requirements, it is still within the discretion of the USCIS to grant or deny a petition. Some applicants might still receive a denial for lack of clarity when proving they have satisfied each of the three prongs, despite being qualified for the waiver. Your immigration attorney will help you highlight the importance of your proposed endeavor in the following ways:
- How it benefits the U.S. economy
- How it will improve the working conditions of U.S. workers
- How it will improve the environment in the U.S.
- The benefits to a specific U.S. agency or government in general
- The benefits to the U.S. education sector
- Why it is more advantageous to be granted a waiver than to go through the labor certification process
- The immediate and long-term benefits of your proposed endeavor to the U.S.
- And every other piece of evidence as deemed fit in your case
National Interest Waiver Petition Denial
A National Interest Waiver request may be denied for many different reasons. Some reasons for NIW denials include being ineligible, errors on the part of the petitioner or beneficiary, lack of clarity on fulfilling the requirements, and inappropriate filing of the petition. If your request is denied by the USCIS, you may be able to appeal the decision. However, the best thing is to avoid this right from the onset by hiring the service of an experienced NIW attorney.
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Alternatives to EB-2 NIW Green Card
If you are seeking to immigrate to the U.S. for employment, there are several options available to you. Here are some alternatives to the EB-2 visa:
- EB-1 visa category is available to individuals with extraordinary ability, outstanding professors and researchers, and multinational managers and executives.
- EB-3 visa is used to employ foreign workers who are professional, skilled, or unskilled.
- EB-4 visa is a unique visa available for religious workers and special immigrants.
- EB-5 visa was created for investor immigration to the U.S.
- H-1B visa was designed to help American companies hire talent from abroad for specialty occupations.
- L-1 visa allows multinational companies to transfer their employees from foreign offices to their U.S. offices.
- E-3 visa is only available for workers from Australia who fall within the specialty occupation category.
- TN visa is only available for Canadian or Mexican residents who fall within a well-defined occupation list.
- O-1 visa is ideal for bringing workers with extraordinary abilities to work in the U.S.
- P visa is available for athletes, artists, and entertainers who seek to work in the U.S. on a temporary basis.
- R visa allows foreign workers of nonprofit religious organizations to work temporarily in the U.S.
- J-1 visa was specifically created for exchange visitors who are looking to work or study in the U.S.
How VisaNation Law Group Immigration Attorneys Can Help
As you can see, the National Interest Waiver process requires thoroughness and meticulous documentation. With the help of a professional attorney, you can greatly improve your chances of being approved.
VisaNation Law Group’s highly experienced NIW lawyers have helped countless foreign nationals file their NIW petitions and obtain their green cards. They will help you with your case and guide you through the process from start to finish. To get in touch with our office, you can schedule a consultation with us today by filling out this contact form.