EB2 National Interest Waiver based Green Card – Special Considerations

We get a lot of inquiries from individuals interested in applying for green card through EB-2 National Interest Waiver (NIW) category. Attorney Ekaterina Powell from our office has prepared this summary of important considerations when filing EB-2 NIW application.

You may be eligible for an employment-based, second preference green card, if you are a member of the professions holding an advanced degree or its equivalent, or if you have exceptional ability. Normally, an employer must petition for its employees, and each EB-2 petition must be accompanied by an approved individual labor certification from the Department of Labor, which takes a lot of time and effort to obtain.

Instead of going through Labor Certification route, qualified applicants may submit National Interest Waiver request with their EB-2 petition without going through the Department of Labor stages. Qualified applicants may self-petition and do not need an employer to sponsor them for EB-2 category with National Interest Waiver.

In order to qualify for NIW EB-2 category, you need to first satisfy EB-2 requirements: must be a member of the professions either holding an advanced degree (or its equivalent), or be a person of exceptional ability in the sciences, arts, or business.

In addition, you must show that your proposed employment will be in the national interest of the United States. In order to show that your work will be in the national interest of the U.S., you must demonstrate the following:
1) your proposed work must be in the area of substantial intrinsic merit;
2) your proposed work will benefit the nation as a whole (not just local effect);
3) the benefit derived from your work substantially outweighs the national interest in using labor certification process. In other words, this third requirement means that you must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

In order to qualify for NIW, you must show much more than “prospective national benefit” that is required from individuals seeking to qualify as having exceptional ability.

Moreover, in NIW case, the issue is not only whether the particular field of work is of significant importance but also whether the particular beneficiary plays a significant role in this field of work to a substantially greater extent than U.S. workers having the same minimum qualifications.

A common mistake in NIW petitions is too much focus on the beneficiary’s unique qualifications and generalized statements that the beneficiary’s proposed work will benefit the U.S. as a whole. USCIS does not accept mere assertions and needs verifying evidence of beneficiary’s past records of specific prior achievement(s) which justifies projections of future benefit to the national interest.

Thus, the NIW petition should not revolve around beneficiary’s unique background, education, useful set of skills that make the beneficiary exceptionally fit for the proposed position, but should point out in detail how, when, and where the beneficiary has already made some level of past impact on the field that distinguishes him from the rest of his peers.

The element of “past record of specific prior achievement” is probably one of the most important ones (often overlooked) and the hardest one to prove for NIW application. It means that in order for USCIS to decide whether your work will serve the national interest, they have to see your past contributions to the field in which you intend to work in the United States.

Often times, individuals who have recently graduated from Master’s programs seek to qualify for NIW. It is important to note that such individuals are eligible to apply for NIW, and their recent graduation is not determinative and will not preclude the approval of NIW. However, such individuals would need to show that they have already influenced their field as a whole and have received recognition for the work that they did.

If you seek to qualify for NIW, you should submit strong independent evidence to show that your work will contribute to the national interest and that you have already influenced the field you will be working in.

Particular evidence to show past impact depends on the facts of each case. Generally, you should be able to provide letters from experts in the field who know your work, who have relied on your findings, who have already benefitted from your research, and who can attest to the fact that you have achieved recognition in your field and, thus, are distinguishable from your peers.

In addition, awards/honors that you received and other evidence, including but not limited to citations to your publications, showing that others have used your research or applied it in some way are excellent indicators of your recognition. Invitations to write articles, to make presentations, to serve as peer reviewer, or edit articles of others are also helpful for NIW application.

If you believe that you can substantiate that you meet the requirements above, NIW may be a good option for you. If you have any questions or wish to receive a free initial consultation to analyze whether you qualify for National Interest Waiver application, feel free to contact our office. Click here to watch our Video about NIW.

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