The EB2 visa is a permanent employment based green card for foreign professionals who hold an advanced degree or its equivalent or those who possess exceptional ability in the arts, sciences, or business. Typically, the applicant must have been offered a position by a US employer, and the job must be one that requires the advanced degree or exceptional ability. The US employer must also obtain labor certification to qualify as a sponsor for the applicant. The National Interest Waiver (NIW) is a provision to waive this requirement for some individuals.
What is NIW?
The EB2 NIW petition allows qualifying foreign individuals to bypass the labor certification requirement for the sake of the national interest of the US. Aside from the advantage of being able to self-petition without a permanent job offer, implementing the waiver also expedites the EB2 process by eliminating the often-lengthy labor certification procedure.
Recent Changes in the National Interest Waiver
The NIW petition can be a complex and confusing process at the best of times. The recent changing economic and political climate in the US has led to some tightening down of immigration policy that have further complicated the process for many applicants. With continuously changing policies, and varying standards of adjudication by different decision-making offices, working with a reputable immigration attorney who is highly experienced in NIW petitions is more crucial than ever.
EB2 NIW Requirements
In order for applicants to obtain an employment based green card through the National Interest Waiver, they must meet two sets of requirements; – the EB2 requirements, and the additional requirements specific to the NIW petition.
Meeting EB2 Requirements
The primary eligibility requirement for the EB2 visa is to hold an “advanced degree or its equivalent” or to possess exceptional ability in the arts, sciences, or business.
An advanced degree may be an academic or professional degree at or above the US baccalaureate level (or foreign equivalent). Candidates who hold a US Bachelor’s degree (or foreign equivalent) may also qualify if they also have at least five years of post-baccalaureate, progressive work experience in the field.
EB2 candidates who should petition under the premise of “exceptional ability” are those who possess a degree of expertise in their field of the sciences, arts, or business that is significantly higher than that of their peers.
Under normal circumstances, all applicants must show evidence of a job offer, and the employer must meet labor certification requirements.
Specific NIW Requirements
In order to waive the employment and labor certification requirements mentioned above, the applicant must show that the waiver would be in the national interests of the US. There are three specific criteria that must be met in order to qualify for the NIW.
First, the applicant’s proposed endeavor must have “substantial merit and national importance”. This means that work performed by the applicant may contribute to an important national goal to bring positive impact to the US.
The second criterion is that the applicant must be “well positioned to advance the proposed endeavor”. Not only must the applicant have all the necessary education, skills and knowledge necessary for success, but they must also demonstrate a record of past success in similar endeavors, and a feasible plan and strategy for future activities. The plan should include, but is not limited to, financial matters, potential consumer base, partnerships, and investors.
Finally, the waiver should be beneficial to the US. For this category, securing a job or obtaining labor certification may not be feasible or practical based on the applicant’s field of work and qualifications, qualified US workers may not be available (or the US may still benefit from the applicant’s endeavors even if US workers are available), or the applicant may be contributing to an urgent need in the US.
NIW processing time
Processing time for NIW petitions can vary from case to case and depending on whether your application is filed through the Nebraska or Texas service center. As of June 2020, estimated processing times ranged between four to seven and a half months.
NIW RFE & NOIDs
Due to the complexity and changing landscape of US immigration in general and NIW adjudication in particular, there has been an increase in the rate of NIW RFE (Request for Evidence) and NOID (Notice of Intent to Deny). The chances of receiving an RFE or NOID from USCIS can be greatly reduced by seeking the counsel of a qualified immigration attorney who is experienced in NIW petitions. However, if you have already received one of these, Immigration General Counsel can help! Complicated NIW cases are our forte, and our immigration attorneys thrive on the challenge of coming up with creative responses to USCIS RFEs and NOIDs that lead to approvals!
Choosing the right NIW Lawyer
There are many immigration attorneys but finding a great lawyer with significant experience and expertise in NIW petitions is a huge key to success. Your immigration attorney should be well versed not only in the intricacies of EB2 and NIW, but also be knowledgeable about the various transitional and temporary visas to ensure your status remains valid throughout your application process.
Immigration General Counsel Advantages
All of the immigration attorneys at our boutique-style firm are experts in their fields, and the EB2 NIW is no exception. We have significant experience with NIW petitions, boasting a high success rate on some of the most complicated RFE and NOID responses. With in-house expertise in the full range of temporary work visa categories including H1B and L1, we are able to guide you through a smooth transition in status. Also, with a deep understanding of other employment based green card categories such as EB1, EB3, EB4, and EB5, we present you with all possible options so you can be sure to make the best decision for your specific scenario.