NIW (National Interest Waiver)

Frequently Asked Questions for EB-2 NIW (National Interest Waiver)

NIW; NIW Requirements; 

Legal Fees of NIW; Processing of NIW; NIW FAQs

NIW Success

What is the EB2 NIW (National Interest Waiver) Visa or Green Card?

Generally, applying for the second preference of employment-based immigrant visa requires a specific job offer and labor certification process (PERM). However, a foreign national may seek a waiver of a job offer or PERM process by establishing that their admission to permanent residence would be in the “national interest” of the United States.

What are the differences between the Regular EB2 petition and EB2 NIW petitions?

For an ordinary EB2 case, a U.S. employer needs to act as the case petitioner. The petitioner (employer) must obtain a labor certificate before filing Form I-140 for the foreign national. The foreign national is called the “beneficiary.” In addition, the petition needs to establish the qualifications of the foreign national (an individual with an advanced degree or exceptional ability). Finally, the foreign national can self-petition the case for an EB2 NIW   case.
The petition needs to establish the foreign national’s qualifications under EB2 and demonstrate that the qualifications satisfy the National Interest Waiver requirements (three-prong test in the Matter of Dhanasar decision). Generally, it is more challenging to obtain immigration benefits under EB2 NIW than the ordinary EB2 because of the additional requirements for “national interest.” However, Green Card Link has successfully helped more than 3,000 clients obtain EB2 NIW   approval, with the overall approval rate close to 100%.

Who can file a petition under EB2 NIW?

A foreign national may file their EB2 NIW   petition, or an employer can petition for the foreign national.

What does EB2 NIW   waive?

The National Interest Waiver waives the labor certification process and the necessity of having an offer of employment.

Who qualifies for an EB2 visa?

To be qualified for EB2 NIW, one must first meet the requirements of the EB2 category (Second Preference Employment-Based Immigration), which can be satisfied in one of two ways:

  • (1) EB2 “Advanced Degree” — EB2 Advanced Degree can be satisfied by having
  • (a) any advanced degree beyond a baccalaureate degree (including a U.S. or foreign Ph.D., a U.S. or foreign master’s, or MD/MBBS) or
  • (b) you should demonstrate that you have the “equivalent” to an advanced degree, a baccalaureate degree, plus five years of progressive work experience in your field of expertise). Although your case under EB2 Advanced Degree would generally be somewhat stronger with a Ph.D., a Ph.D. is not a strict requirement to satisfy EB2 Advanced Degree.
  • (2) EB2 “Exceptional Ability” — If you do not meet either of the above two requirements, you can still satisfy the requirements of EB2 by demonstrating that you help EB2 Exceptional Ability. To do so, you would have to provide evidence that you meet at least three of the criteria listed below:
  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters documenting at least ten years of full-time experience in your occupation
  • A license to practice your profession or certification for your career or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable.

What is the advanced degree for the NIW petition?

An advanced degree for an EB-2 visa is the United States advanced degree (degrees above a bachelor’s) or a foreign equivalent degree.

What if one only has a Bachelor’s degree and not a Master’s or above?

If the foreign national has only received a United States baccalaureate degree or a foreign equivalent degree, the experience of at least five years of progressive, post-baccalaureate experience in the specialty plus the Bachelor’s degree will be sufficient for the advanced degree requirement. Otherwise, the foreign national needs to show “exceptional ability.”

What is “exceptional ability” for the EB2 petition?

The other group in the second employment-based preference includes foreign nationals with exceptional ability in the sciences, arts, or business. In addition, athletes may be considered aliens of extraordinary skills in the arts to qualify for the second employment-based preference.

Who has “exceptional ability”? What document qualifies then as evidence of “exceptional ability”?
The law does not specify the definition of “exceptional ability.” However, the law requires the foreign national to have a higher level of expertise in the field.
To establish exceptional ability in the sciences, arts, or business, a petitioner must document at least three of the following:
An official academic record showing that the foreign person has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability
Evidence in letters from current or former employers shows that the foreign person has at least ten years of full-time experience.
The petitioner must have a license to practice the profession or certification for a particular career or occupation.
Evidence that the foreign person has commanded a salary or other remuneration for services that demonstrate exceptional ability.
Evidence of membership in a professional association or
There is evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

What other evidence can be considered in addition to the listed six criteria of “exceptional ability”?

The USCIS has indicated that it will consider comparable evidence appropriate to the foreign national’s application if the foreign national cannot provide the type of evidence listed above.

May a foreign medical degree qualify as the equivalent of a U.S. M.D. degree for an EB2 petition?

A foreign medical degree may qualify as the equivalent of a U.S. M.D. degree if several conditions are met when the labor certification application is filed. First, the foreign national must establish that they:

  • have been awarded a foreign medical degree from a medical school that requires a foreign beneficiary to obtain a bachelor’s degree equivalent to a U.S. bachelor’s degree as a requirement for admission,
  • has been awarded a foreign medical degree, and a foreign education credential evaluation is provided that describes how the foreign medical degree is equivalent to a medical degree obtained from an accredited medical school in the United States, or
  • Has been awarded a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) or an equivalent examination, such as the U.S. Medical Licensing Examination (USMLE), Steps 1, 2, and 3.

Who qualifies under EB2 NIW?

A foreign national who is qualified under the regular EB2 visa and can pass the three-prong test in the Matter of Dhanasar decision:

  • proposed endeavor is of substantial merit and national importance
  • well-positioned to advance the proposed endeavor
  • a significant benefit for “national interest.”

For more information regarding EB2 NIW   qualifications, please see our article here

What form should be filed for the EB2 NIW petition?

Form I-140.

Is a labor certification required for the filing of the EB2 NIW petition?

No Labor Certification is required for the EB2 NIW visa. Therefore, EB2 NIW waives the labor certification.

Is a job offer required for the EB2 NIW Green Card?

No job offer is required.

What are the significant advantages of applying for EB2 NIW?

  • No labor certification is required.
  • No job offer or permanent job position is required.
  • Self-petition is allowed.
  • Most visas are current except for people born in China and India.

How difficult is it to have the EB2 NIW   approved?

A foreign national seeking to meet the EB2 NIW standard must show that their qualifications are significant enough to prove “prospective national benefit.” The burden will rest with the foreign national establishing that exemption from or waiving a job offer will be in the national interest. Each case will be adjudicated on its own merits. If a beneficiary is qualified, the chance of success depends mainly on how the case is presented. If the evidence is relevant and well presented, and the argument is made persuasively, there is a good chance of case approval. But each case approval is up to the immigration officer’s discretion, and not all officers adjudicate cases in the same way.

What is the EB2 NIW Approval Rate?

The USCIS has never released information regarding the overall EB2 NIW approval rate. However, green Card Link has maintained a high approval rate for this category. From 2017 till now, we have over 3,000 NIW approval, with the overall approval rate close to 100%.

What standard does the USCIS take to determine an EB2 NIW   case?

The decision Matter of Dhanasar, released in December of 2016, established new standards for obtaining EB2 NIW petitions that the USCIS adopted. The AAO (Administrative Appeal Office) held that three factors must be considered when evaluating a request for an EB2 NIW:

  • A foreign national’s proposed endeavor is of substantial merit and national importance,
  • Foreign national is well-positioned to advance the proposed work, and
  • On balance, it would be beneficial to waive the job requirement for the foreign national

What are the requirements of “substantial merit” and “national importance” under the first prong of the Matter of Dhanasar? What evidence should be submitted to meet the requirements?

In the precedent case Matter of Dhanasar, the AAO stated that an endeavor’s merit might be demonstrated in business, entrepreneurialism, science, technology, culture, health, or education. Evidence to establish that the beneficiary’s proposed endeavor has substantial merit consists of, but is not limited to, the following:

  • A. A detailed description of the proposed endeavor and why it is of substantial merit; and
  • B. Documentary evidence supports the petitioner’s statements and establishes the endeavor’s merit.

In determining whether the proposed endeavor has national importance, the immigration officers consider its potential prospective impact. Evidence to establish that the beneficiary’s proposed endeavor has national importance consists of, but is not limited to, the following:

  • A. A detailed description of the proposed endeavor and why it is of national importance,
  • B. Documentary evidence supports the petitioner’s statements and establishes the endeavor’s national importance. Such evidence must demonstrate the endeavor’s prospective impact and may consist of, but is not limited to, evidence that shows the proposed endeavor:
  • Has National or even global implications within a particular field;
  • Has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area;
  • Will broadly enhance societal welfare or cultural or artistic enrichment; and
  • Impact a matter that a government entity has described as having national importance or is the subject of national initiatives.

What should a foreign national demonstrate that they are “well-positioned to advance the proposed endeavor” under the Matter of Dhanasar decision?

An EB2 NIW petition needs to establish that the foreign national is well-positioned to advance the proposed endeavor, and she has a strong standing in her field. She can continue her work successfully in the U.S.

Letters from experts in the field can demonstrate the interest of the U.S. government in the petitioner’s research. Documentation that the foreign national played a significant role in projects funded by governmental grants and evidence of the foreign national’s education background, skills, knowledge, expertise, and other notable achievements in their field, including outstanding memberships or media reports.

What factors does the USCIS consider to assess if “it would be beneficial to the United States to waive the job offer and labor certification requirements” for the foreign national under the Matter of Dhanasar decision?

For this requirement, USCIS may evaluate whether the projected benefits of a foreign national to national interest outweigh the necessity of a labor market test of seeking equivalently qualified U.S. workers.
A variety of evidence should demonstrate how the foreign national qualifies for a National Interest Waiver. Therefore, it is not sufficient to list the foreign national’s achievements. Instead, a competent attorney can write a letter in support of evidence to ensure that the petition, letters of recommendation, and supporting evidence will prove that the foreign national is qualified for a National Interest Waiver.

What supporting evidence will best show that the foreign national will significantly contribute to the national interest?

Below is a list of evidence commonly included with our EB2 NIW   petitions to demonstrate this aspect and explain how each type of evidence can satisfy the EB2 NIW.

Publications & Citation Records (including journal articles, book chapters, and books): 

A complete publication record should be included with the petition to demonstrate the alien’s history of scientific achievement. Publication alone, however, will not show the alien’s influence in the field. The publication record should have a citation record to demonstrate the effect of the alien’s work on the field, and show that other researchers are utilizing the result. Additionally, journal impact factors and average citation records for the field can show that the alien has a degree of influence above the average researcher in the field. It should be noted that there is no “magic number” of citations that will guarantee EB2 NIW   approval, and there are many strategies that offset a low citation record.

Letters of Recommendation 

Letters of recommendation are a crucial aspect of the EB2 NIW   petition. Independent letters of recommendation (from those who have never worked or studied with you, collaborated with you, or advised your work) will carry much more weight with the USCIS than letters from dependent recommenders. This should be taken into consideration when selecting recommenders. Letters of recommendation should discuss your research contributions and their significance in layman’s terms and comment directly on your work’s benefit to the United States. Letters of recommendation are also an excellent opportunity to demonstrate the implementation of one’s work. A letter of recommendation from someone who has utilized your work, and can explain how they have done so in the letter, is a great way to strengthen your case. As part of our service, we will draft all of the recommendation letters. We will advise you closely on appropriate recommender selection and how many letters should be prepared for your case. We set out a clear strategy when drafting the recommendation letters to ensure that the letters contain all of the necessary statements to substantiate our claims in the petition. Lastly, we never rely on templates to draft the letters and instead tailor each letter to your individual needs and unique case strategy.

Government Funding/Grants 

Funding from reputable institutions or government agencies such as U.S. Military, NIH, NASA, etc., is substantial evidence in showing the national importance of the foreign national’s work. Therefore, it is essential to demonstrate the foreign national’s high level of involvement in the application for the funding and their critical role in the research related to the grant after it was granted.

Membership: 

If the memberships are in the foreign national’s field of expertise and require outstanding achievements as the selective criteria, the memberships can improve the foreign national’s overall credentials.

Awards: 

For awards to strengthen the EB2 NIW petition, they need to recognize the petitioner’s nationally/internationally achievements explicitly. Awards open to individuals at a particular institution, city, or state/ region/ province are not as influential. For instance, an award given by the American Chemical Society would likely be nationally recognized because it is the largest professional organization for chemists in the U.S.
Published Materials About the Foreign National The benefit of one’s work to the U.S. can be shown by media coverage. If the articles or printed material used as evidence focused on the foreign national or the work which they have performed in the field of endeavor, and the media enjoys national or international recognition, this will be helpful for the EB2 NIW petition

Patents, Contracts, Licenses, and Technology Transfers 

A complete patent record, accompanied with citation or commercialization evidence, is significantly helpful for demonstrating the utility of the foreign national’s work as being adopted by the industry. Other similar evidence, including contracts, licenses, and technology transfers, is also demonstrative of implementing the foreign national’s work.
Evidence of Others Relying on the Foreign National’s Work If researchers requested the foreign national’s work or assistance from outside institutions, this indicates the impact and significance of the foreign national’s endeavor. Documentation such as email correspondence and acknowledgment in major trade publications or major media are good evidence.

How many publications and citations are sufficient to meet EB2 NIW   requirements?

There is no specific minimum publication or citation requirement; instead, it is determined by USCIS on a case-by-case basis.

Can I file under the category of EB2 NIW and another category simultaneously?

Yes. But you have to file a separate Form I-140 petition, with the required separate filing fee and supporting documentation for each requested visa category. So do not check multiple categories on one I-140 Form.

How can an EB2 NIW petition be filed?

An I-140 form, together with supporting evidence, is mailed to the appropriate service center.

Does priority date matter in an EB-2 NIW?

Priority date mostly matters for people from China and India because priority date is not current for people born in these two countries. The regression can be for several years. Usually, the priority date for foreign nationals born in the rest of the countries is current under the EB-2 visa. However, according to the Department of State (DOS), the priority date may not be current for the months close to the last month of the fiscal year (October).

How do I know if I am qualified under EB2 NIW category?

This question can be quickly answered by sending our attorneys your resume. So please send us your resume to our attorney today at admin@greencardlink.com.

Can an EB2 NIW be withdrawn?

Yes, the petitioner or the Form G-28 representative may send a letter requesting to withdraw the I-140 petition to USCIS.

If my EB2 NIW   petition gets denied, how long do I have to wait to file under EB2 NIW or other categories again?

The law does not restrict the time you can file your EB2 NIW petition after denying your previous filing. In addition, a previously denied petition does not bar you from submitting another petition subsequently, regardless of which classification is concerned. However, it is not advisable to simply submit a similar petition again unless your circumstances have improved.

How should I organize the evidence with the petition?

Follow the tips below for how to organize your evidence:
Provide all required documentation and evidence with the petition when filed. An I-140 petition may be denied without a request for proof when the required evidence described in the instructions and regulations is not initially provided.

  • If providing photocopies of documents, provide clear legible copies.
  • All foreign language documents must be submitted with a corresponding English translation. The English translation must be certified by a competent translator and must verify in writing that “the translation is true and accurate to the best of the translator’s abilities.” It is helpful if the English translation is stapled to the foreign language document.
  • If documenting the foreign national’s publications or citations of the foreign national’s work, highlight the foreign national’s name in the relevant articles. It is unnecessary to send the full copy of a dissertation, thesis, or research paper written by the foreign national or one in which the foreign national’s work has been cited. Instead, include the title page and the portion(s) that mention the foreign national’s work and the “works cited” or bibliography.
  • Tab and label the evidentiary exhibits at the bottom of the first page of each exhibit, and provide a list of the evidentiary exhibits and the eligibility criteria that each exhibit is submitted to establish for petitions supported by a substantial amount of documentation. An exhibit that is being provided to meet multiple eligibility criteria should be so identified in the exhibit list.

What is a letter of recommendation for an EB2 NIW green card?

A letter of recommendation is also called a reference letter. It is a letter written by an expert in the foreign national’s field or some otherwise authoritative individual in an allied or related field. Recommendation letters are essential in the petition for employment-based immigration benefits. Given that adjudicating officers are rarely experts in your field, one way to determine whether a foreign national qualifies for the standard set in the Matter of Dhanasar decision is by looking at the objective evidence submitted. A recommendation letter is among the most important of them.

Whom should I contact to obtain letters of recommendation for my EB2 NIW petition?

A foreign national should obtain strong letters from both the foreign national’s “inner circle” and “outer circle” of peers. The foreign national’s inner circle includes those they have directly worked with, either academic or business. While these letters are often the most glowing, they can carry less weight as they are possibly biased.

What information should be included in the recommendation letters for an EB2 NIW case?

These are things that should be included in a recommendation letter:

  • Qualifications of the recommender: A recommendation letter needs to include the description of the recommender. If the recommender comments on the foreign national’s achievements or research, a statement should be included in the support letter that establishes the qualifications of these individuals to judge the foreign national’s work.
  • Helpful testimonials from experts: Expert testimonials of your accomplishments are crucial to your petition. However, keep in mind that expert testimonials should bolster the argument that you meet the standard set by law.
  • Substantive information: A good recommendation letter should highlight the high level of unique expertise the foreign national possesses. Suppose it is a recommendation letter from an employer or professor of a foreign national. In that case, it should specify the work the foreign national is responsible for and the job requirements. 
  • Although a job offer is not required for EB2 NIW petitions, a recommendation letter from an employer can cite such a position to establish that very few individuals can fill the offered position. Only top individuals in the field or those with exceptional ability can perform the duties required for the job) and the foreign national is one of these few individuals. 
  • In addition, recommendation letters that briefly discuss the foreign national’s activities and describe them as knowledgeable individuals but lack specific information regarding how the foreign national’s endeavors had significantly contributed to the United States’ interest are insufficient.

How many reference letters are needed?

The USCIS does not list a specific number of required reference letters, but there should generally be three to seven recommendation letters in an EB-2 petition.

Do you provide services in regards to drafting the recommendation letters?

Recommendation letters are hard to write but effective letters will significantly increase your chance for a successful case. After our firm is retained, we will help you obtain effective recommendation letters using these steps:

  • Our firm will provide detailed advice concerning reference letters and assist you with the content, purpose, and format of reference letters.
  • Our firm will confer with you about prospective candidates for writing reference letters.
  • You will need to provide us with detailed evidence pertaining to the expertise and authority of the references, your connection to the references, the relationship between your research and theirs, etc.
  • After receiving the documentation you provide, our attorneys and legal team will write the reference letter for you.
  • You will send the recommendation letters to the references for their review and signature.
  • Before our firm submits the application, our attorneys will review the substantially revised reference letters to determine if it is necessary to ask the reference to sign an updated version.

What if I change jobs while my NIW petition is pending?

If you self-petition, changing positions will have no impact on the status of your case, and your petition will remain active. If you are sponsored by your employer, a new petition may need to be filed.

Can a Ph.D. student apply for an NIW? What is the success rate?

Our law firm has successfully petitioned cases for Ph.D. students to obtain green cards in the NIW category. It is believed that since Ph.D. students still require the teaching of their professors, it is challenging to argue that they are at a level of expertise in their field. However, there are ways to define the area of expertise to make the petitioner appear “substantially above others in the field”. Our law firm has established winning approaches to assist Ph.D. students in obtaining NIW benefits. The approval rate of Ph.D. students applying for NIW benefits is similar to that of other applicants in our law firm.

Can an F-1 student visa holder apply for NIW? Do I have to wait to apply for the green card until after my graduation and change the visa to H-1B?

The F-1 visa is a non-resident visa, but an F-1 visa holder is allowed to apply for a green card. However, an F-1 visa holder cannot have dual intent when they apply for a non-resident visa. Non-resident visa holders, such as J-1 or F-1, can change their intent after receiving a non-resident visa. A non-resident visa holder does not have to change the visa type to a non-resident visa, such as an H or L visa which allows dual intent, before filing a green card application. Anyone can file an immigration application at any time as long as the qualification requirements are met. But, if the current F-1 visa time is not long enough to finish your degree, it is better to wait to file the green card petition after you have extended the F-1 visa.

What is the difference between NIW and EB-1A (alien of extraordinary ability) applications? Is it possible to file two applications such as an NIW and EB-1A at the same time?

The requirements of NIW and EB-1A are different, and the preparation process is substantially different for these two applications. Successful NIW cases are not limited to non-residents who are perceived to be at the top of their field of expertise. Presenting evidence in support of the application that creates the most favorable opinion will help gain approval. For instance, it is important that the applicant interpret the non-resident’s field as narrowly as possible while sustaining credibility. In narrowing the reference, the non-resident will be compared to a greatly reduced set of U.S. peers. However, it should not be so reduced that the AAO will suspect the non-resident’s field as being too narrow. The definition of the non-resident beneficiary’s expertise area should be supported by evidence. Once the I-140 is approved, there is not a significant difference between the two classifications for the I-485 application. It is feasible to file two petitions such as an EB-1A and an NIW concurrently. Some non-residents file two I-140 applications simultaneously in EB-1 and NIW. The law does not prohibit multiple filings, and in fact, this could increase your chances of approval.

If I have not published articles in journals within my field, can I still apply for an NIW?

The answer is yes, you can apply for an NIW since there is no specific requirement that you have to have published articles to apply or obtain approval of an NIW petition. However, publications will greatly improve the chances of approval because publications help to prove your authorship and original contribution. You can also prove your case by providing documentation that proves the other prongs listed by the law.

If I do not have any awards in my field, can I still apply for an NIW?

You can still apply for an NIW even if you do not have any awards in your field. There is not a specific requirement regarding awards in order to apply or obtain approval for an NIW application, although awards do improve the chances of approval. You can prove your case by providing documentation that proves the other prongs listed by the law.

I am a J-1 holder subjected to the two-year foreign country residency requirement. Can I apply now under NIW, and get my J-1 waiver later?

The answer is yes, you can apply for the NIW now, and get the J-1 waiver later. Even with I-140 approval, you are still bound by the two-year foreign residency requirement and must get the J-1 waiver before adjusting your status to permanent resident.
You are not required to have a J-1 waiver before submitting an I-140 application. The two-year foreign residency requirement does not allow adjusting the status from J-1 to permanent residency, but it does not prevent the submission of an I-140 application. Also, you can prepare your case for I-140 and J-1 waiver simultaneously. If you receive the I-140 approval before the J-1 waiver, you must wait for the J-1 waiver before submitting the I-485 petition for status adjustment.

What is the legal fee of an NIW case for your firm?

Our firm charges a flat-rate attorney fee of $5,0000 for an NIW petition.

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