Unlike the EB-1A visa, which is for individuals with extraordinary abilities, the EB-2 visa is for employment-based immigration and requires a permanent job offer and labor certification. This means the applicant must have a secure job offer and the employer must petition on their behalf, a process that can be lengthy and expensive, often deterring employers.
However, the “National Interest Waiver” (NIW) clause within the EB-2 visa allows an individual to bypass the job offer and labor certification if they can prove their relocation is in the national interest. This higher standard requires more evidence, including completing Form I-140 and demonstrating that their permanent residency benefits the nation.
A 2016 decision by the Administrative Appeals Office introduced a new, potentially less stringent system for determining NIW eligibility, which may be more inclusive of diverse backgrounds.
GreenCardLink.com has successfully petitioned over 3,000 EB-1 and NIW cases with a 98% success rate. Our proven strategy for NIW approvals resulted in numerous successes last year alone. We have helped individuals from various fields such as engineering, science, medicine, history, mathematics, and technology obtain NIWs through our exceptional service. Our approach combines the personalized attention of a small firm with the broad expertise of a larger one, ensuring that each client receives the time and dedication they deserve.
It is crucial to meet the basic requirements for the EB-2 visa classification before pursuing a national interest waiver. The NIW is only applicable once the threshold for the second preference category is met.
“National Interest” Criteria
The Immigration Act of 1990 does not explicitly define “national interest,” but it is understood to mean more than merely proving a potential national benefit. This allows for flexibility in interpretation, with each case evaluated on its own merits. Generally, the job must provide a clear societal benefit to be considered in the national interest. Examples of such benefits include:
Improving salaries and working conditions for employees
Enhancing the economy
Bettering the environment and promoting sustainable resource use
Increasing affordable housing availability
Fulfilling a government agency’s request
New York State Department of Transportation Decision
A 1998 precedent set by the New York State Department of Transportation (NYSDOT) imposed stricter standards for National Interest Waiver (NIW) requests. Three main criteria were examined:
Area of Substantial Intrinsic Merit
Proposed Benefit of National Scope
National Interest to the U.S.
2016 Administrative Appeals Office Decision
In 2016, the Administrative Appeals Office overturned the NYSDOT decision, leading to new criteria for NIW eligibility. Under the new guidelines, an individual may be granted a waiver if they demonstrate:
Their goals have substantial merit and national importance
They are likely to achieve these goals
It is beneficial for the U.S. to waive the job offer and labor certification requirements
Meeting the NIW Requirements
- Substantial Merit and National Importance
To meet the criteria established by the 2016 decision, the applicant’s work must align with significant national objectives and be beneficial to the U.S.
Substantial Merit
Merit can be shown in various fields such as education, medicine, science, technology, or business. While demonstrating a significant societal impact is advantageous, it is not mandatory. Applicants should provide documentation that highlights the significance and potential benefits of their work, such as:
A detailed explanation of the plan and its substantial merits
Concrete evidence supporting the individual’s plans and their importance
Letters of recommendation and publications or reports that discuss the research and its significance
These documents help establish the merit of the applicant’s work and its potential impact on the U.S.
1B. National Importance
The AAO decision- Matter of Dhanasar expanded the way “national importance” was depicted by taking into consideration the possible effect the individual’s endeavors may have. This possible effect is looked at in a worldly manner rather than just geographically. For example, a doctor working in a hospital may be thought to only benefit that region, but instead, they can say they benefit the nation with their research and any advances they make in the field. Because scientific developments often go hand-in-hand with national goals, it can be simple to establish that scientific research is nationally important.
Documentation demonstrating the following can be presented :
The individual has connections within a field, nationally or globally
The individual has the means to utilize U.S.-based workers or has positive economic impacts
The individual will strengthen welfare and/or cultural or artistic enhancement
The individual influences an area said to be of national importance by someone in the government
The documentation must illustrate the impact possible from the individual’s venture. Apart from explaining ways in which the work is significant for the nation, more support can be provided through other forms of documentation.
Financing from agencies relating to the government: the individual’s work financed by the government surely proves the work’s benefit to the U.S.
Citations: illustrate the work’s impact on the field, while also showing the work is used throughout the nation
Recommendation letters: can explicitly describe the benefits of the work for the nation, and the way in which the work is applied
Examples: Situations our firm handled
- On Track to Move Endeavor Along
Under the second prong of the AAO decision, it is required to prove that the individual is situated in a way to further their planned venture. Some of the factors the USCIS looks at to determine this include a level of education, skill set, and previous successes. They will also look at a plan for the future; progress in reaching the endeavor; and curiosity of possible users and investors. Even without certainty, the efforts will succeed, with sizable proof, it may be decided that the individual is on a path of advancement regardless.
Evidence can include letters depicting the government’s interest in the individual’s research, proof the individual was part of projects paid for by the government, expertise, documentation of education levels, and other achievements.
Utilizing EB-1A and EB-2 Standards for Evidence Gathering
When gathering evidence, it’s beneficial to consider the standards for EB-1A and EB-2 visas. Although these standards are more stringent, they provide a useful framework for identifying effective evidence to establish past achievements and the significance of the planned endeavor.
Types of Evidence for EB-2 NIW Petitions
Publications and Citations:
Including a comprehensive record of publications, such as articles, books, and academic journals, demonstrates past scientific achievements. Accompanying these with citation records helps establish that the work is being utilized by others.
Letters of Recommendation:
These play a crucial role in NIW petitions. Independent letters (from individuals with no personal relationship to the petitioner) are more influential than dependent letters. These letters should detail the individual’s contributions, their importance, and the benefits their work brings to the U.S., including specific examples of how their work has been implemented.
Government Funding:
Evidence of government or institutional funding highlights the significance of the work. It is essential to detail the individual’s role in the funded projects.
Membership:
Membership in specialized fields that require particular criteria can enhance credibility.
Awards:
Nationally or internationally recognized awards significantly bolster the petition.
Published Material about the Individual:
Media coverage can highlight the benefits of the individual’s work.
Patents, Contracts, and Licenses:
A record of patents, along with citations or proof of commercialization, demonstrates the usefulness and industry adoption of the work.
Others’ Reliance on the Work:
Documentation such as emails and acknowledgments from other institutions requesting the individual’s work further supports the case.
Critical Roles:
Proof of significant positions held by the individual in relevant projects or endeavors.
Prong 3: Beneficial to the Nation
The third prong of the AAO decision requires demonstrating that it is in the U.S.’s best interest to bypass the job offer and labor certification requirements. USCIS may consider factors such as the impracticality of obtaining a labor certification for unique skills or knowledge, the potential for the individual’s work to create new jobs, and the absence of negative impacts on U.S. workers.
Recent Trends in NIW Decisions
TSC and NSC Differences:
There are notable differences in how the Texas Service Center (TSC) and Nebraska Service Center (NSC) handle NIW petitions, with TSC issuing more Requests for Evidence (RFEs).
Focus on Prong 3:
Since the Dhanasar case, Prong 3 has become a critical determinant of merit. There has been an increase in objections based on Prong 3, highlighting the importance of explaining why obtaining a labor certification is impractical or unnecessary.
Individuals Abroad:
GreenCardLink.com has successfully filed numerous NIWs for individuals abroad or unemployed in the U.S., though this can increase the chance of rejection. Strong evidence of credibility in their field is crucial.
Continuation of Work in the Field:
USCIS often expects proof that the individual will continue working in their field after the NIW petition is approved.
Letters of Recommendation for EB-2 NIW
Recommendation letters are pivotal in NIW petitions. At GreenCardLink.com, we draft 4-6 letters for each client within 10 days, ensuring a mix of independent and dependent letters. Independent letters, seen as unbiased, address the impact of the work, while dependent letters provide a detailed analysis of the work or research.
Filing an EB-2 NIW
To file for an EB-2 NIW, submit Form I-140 (Immigrant Petition for Alien Workers) and supporting materials to the appropriate service center. This includes the petition, recommendation letters, and other supporting documents.
By understanding and leveraging the preferred evidence types and following these guidelines, petitioners can enhance their chances of successfully obtaining an NIW.