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EB-2 NIW (National Interest Waiver) – Clarification of Common Myths and Misunderstanding

2018-07-06, BY WeGreened

In 2016 and 2017, our firm filed a total of 3,220 NIW (National Interest Waiver) cases, out of which we received 3,199 approvals for a total approval rate of 99.32%. For NIW cases filed under our “Approval or Refund®” service, our firm received 2,645 approvals for an approval rate of 99.62%. For NIW cases filed under our “Regular” service, we had an approval rate of 98.10% with 554 NIW approvals.
 
Furthermore, in January through May of 2018, our firm maintained its strong NIW approval rates, with a 99.8% approval rate for cases under our “Approval or Refund®” service and a 99.12% approval rate for cases under our “Regular” service. 
 
Based on our extensive experience in EB-2 NIW category and numerous successful petitions, we would like to take this chance to clarify some of the most common myths and misunderstandings about the EB-2 NIW category.



1. “EB-2 NIW is only for scientists and researchers”

Many people think that only scientists and researchers can apply for EB-2 NIW. This is not true. We have successfully filed EB-2 NIWs for clients who are medical doctors, dentists, pharmacists, engineers, accountants, writers, opera singers, website designers, entrepreneurs, and visual art designers, just to name a few fields. In fact, anyone who can meet the basic requirements (advanced degree or equivalent, or exceptional ability) under EB-2 (Second Preference of Employment-Based Immigration) might be qualified to file an I-140 petition under the EB-2 NIW category if arguments can be made that their credentials can pass the three prong test set forth by the Matter of Dhanasar precedent decision. The three prong test stipulates:

  1. The waiver applicant's proposed endeavor must have both substantial merit and national importance.
  2. The waiver applicant must demonstrate that they are well-positioned to advance the proposed endeavor.
  3. The waiver applicant must demonstrate that it would be beneficial to the United States to waive the job offer and labor certification requirements.

In particular, the new Matter of Dhanasar forms a more flexible eligibility test than the preceding test set in Matter of NYSDOT (New York State Department of Transportation), and it is meant to apply to a greater variety of individuals, thereby widen the scope of petitioners that could qualify for a green card under the NIW category.



2. “I must have a job or have a U.S. job offer to petition for EB-2 NIW”

Since NIW is a self petitioned category, it does not require a solid job or job offer in the U.S.; in fact, the purpose of the National Interest Waiver is to waive the requirement that one must possess a specific employment offer.
 
Furthermore, one does not even have to be in the U.S. in order to apply under EB-2 NIW, as the I-140 can be filed from anywhere in the world. However, if you are outside the U.S. without a solid U.S. job offer or unemployed while residing in the U.S., it is still important that you demonstrate that you will be well-positioned to find such employment within the United States based on your position in the field. 
 
Our firm has successfully petitioned thousands of EB-2 NIW cases for clients who were either residing outside the U.S. at the time of filing or who were in the U.S. in their PhD program without employment authorization. These clients, despite not having U.S. employment at the time of their case filing, did have a record of substantial achievements and were still qualified for EB-2 NIW approval. 
 


3. “If My EB-2 NIW is approved, I have to keep working for the same employer”

As noted above, EB-2 NIW is a self-petitioned category, and as such it is not tied to a particular job. A petitioner who has filed an I-140 under the EB-2 NIW category is allowed to change jobs as long as they continue to satisfy the requirements of the EB-2 NIW category—namely, they must continue to work in the field of endeavor that forms the basis of their EB-2 NIW petition, and their proposed endeavor must continue to be nationally important to the U.S. It should be noted that the USCIS defines fields generously, so, as long as you are working in a related field of research, you should be able to satisfy the same field requirement. 
 
For an EB-2 NIW case, you will most likely be the petitioner as well as the beneficiary of your case, as opposed to an employer-sponsored category, in which the employer is the petitioner for the case but you would be considered the beneficiary. Under EB-2 NIW, your I-140 approval can be attributed to you, rather than your employer, and as such would not have to be modified or transferred if you were to change jobs. Your case will not be denied or revoked by the USCIS even if you changed employers, and, indeed, many of our clients changed employers while their I-140 was pending or after their I-140 was approved without difficulty.



4. “My employer is filing EB-2 PERM, so I can’t file EB-2 NIW”

This is not true. I-140 petitions are adjudicated individually by the USCIS, so you should be able to file multiple petitions in different categories simultaneously, and these petitions should not affect one another. You can therefore file an employer-sponsored EB-2 PERM petition and a self-petitioned EB-2 NIW petition at the same time.
 
Because EB-2 NIW is a self-petitioned category—as described above in (3)—the main advantage in applying for EB-2 NIW when your employer is applying for EB-2 PERM or you have an approved EB-2 PERM is that, with an approved NIW, you will have more freedom to change employment without having to worry about transferring your EB-2 petition from your old employer to your new employer. 
 


5. “I was born in India/China, there is a long wait time for me under the EB-2 category, so EB-2 NIW is not helpful”

Although the wait time under EB-2 for individuals born in India or China can indeed take several years, this does not mean that an EB-2 NIW case is not helpful or that you would derive no benefits from having an approved EB-2 NIW case.
 
First, in terms of benefits, if you have an H-1B visa, you are eligible to extend your H-1B visa beyond the 6 year cap if you have an approved EB-2 I-140 or an EB-2 I-140 petition that has been pending for more than 365 days. Your H-1B visa can be extended for as long as necessary until your priority date becomes current and you become eligible to file the I-485.
 
Second, your H-4 dependent can become eligible to obtain an H-4 EAD (Employment Authorization Document); that being said, you should be aware that the current administration is considering cancelling the H-4 EAD program.
 
Third, with an EB-2 I-140 petition, you will have an early priority date that you may port to your future EB-1 petition. Although the priority date under EB-1 is usually current, many expect that it will not always be current with the increased number of applicants under this category. With an earlier priority date, you will have a better chance to file an I-485 with EB-1.
 


6. “If I don’t have a Ph.D., I don’t meet the minimum qualifications for EB-2 NIW”

That is not correct and we have helped thousands of clients without PhD obtain NIW approval. 
To elaborate on the requirements of law, in order to qualify under NIW, one must first meet the requirements of the EB-2 category (Second Preference Employment-Based Immigration), which can be satisfied in one of two ways:
 
(1) EB-2 “Advanced Degree” — EB-2 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) by demonstrating that you have the “equivalent” to an advanced degree (namely, a baccalaureate degree plus five years of progressive work experience in your field of expertise). 
 
Although your case under EB-2 Advanced Degree would generally be somewhat stronger with a Ph.D., a Ph.D. is not a strict requirement to satisfy EB-2 Advanced Degree.
 
(2) EB-2 “Exceptional Ability” — If you do not meet either of the above two requirements, you can still satisfy the requirements of EB-2 by demonstrating that you satisfy EB-2 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 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession 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.

Our firm has had thousands of cases approved for clients without Ph.D. degrees. Many of these clients were either still Ph.D. candidates pursuing their degrees or they were already working with their master’s degree. We will let you know at the time of evaluation if you meet the minimum qualifications for a viable EB-2 NIW case. 



7. “I don’t have many publications or citations, so my case will be too weak to apply for EB-2 NIW”

The USCIS does not have any predetermined number of publications or citations that would qualify a petitioner under the EB-2 NIW category or guarantee EB-2 NIW approval. In many cases, having publications and citations is useful evidence for an NIW case because citations are a good indicator of the impact of the petitioner’s work and can be used to demonstrate both that the petitioner’s proposed endeavor is nationally important to the U.S. and that the petitioner is well-positioned to advance his or her proposed endeavor.
 
That being said, the immigration officer may take into consideration factors such as education, skills, knowledge, and record of success in related efforts when evaluating EB-2 NIW cases. If you do not have many publications and citations, but you have strong records of other ways in which your work is being implemented by others in your field, you may still have a good NIW case to pursue. Useful evidence of implementation or impact can include: funding from external sources; commercialized patents; licenses, contracts, or technology transfer agreements with companies; advancement of your work to clinical trials or inclusion of your work in clinical guidelines; or correspondence between yourself and independent scholars interested in utilizing your work for their own research endeavors.
 
Our firm has a great deal of experience handling cases with low or moderate citations, and we have many strategies that we can employ to demonstrate that you have had a significant impact on your field of expertise even though this may not be initially apparent through your citation record. 



8. “I am not currently in the U.S., so I cannot apply for EB-2 NIW”

This is not true. As discussed in relation to point (2) above, the I-140 petition can be filed from anywhere in the world, and the NIW category requires neither U.S. residence nor solid employment with a U.S. employer. If you are outside the U.S. when applying for a green card under EB-2 NIW, you and your dependents can apply for an immigrant visa at a U.S. Department of State consulate in your home country after your NIW I-140 is approved. You would then use the immigrant visa to enter the U.S., receive your green cards, and become permanent residents. This process is known as immigrant visa processing (IV processing), and we have had many cases approved for clients living abroad at the time we filed their cases and who had their cases approved via this process. 



9. “I have to be in the United States for a period of time before I can file EB-2 NIW”

This is generally not true. There is no predetermined period of time that you have to be in the U.S. before you become eligible to file an EB-2 NIW application. However, the timing of your EB-2 NIW filing may be impacted by when you last entered the U.S. and the non-immigrant visa that you used to enter the U.S. 
 


10. “I cannot leave the U.S. after I file EB-2 NIW or my case will be denied”

No, leaving the U.S. alone won’t affect your pending or approved NIW. 
 
If you intend to leave the U.S. for a long period of time, doing so should not by itself impact your chances for EB-2 NIW approval so long as you continue to satisfy the requirements of the NIW category. As noted above, if you are outside the U.S. when your NIW case is approved, you can still complete the green card process through immigrant visa processing abroad after your EB-2 NIW case is approved.
 
If you want to leave the U.S. for a short trip during the green card process and then return to the U.S. with your non-immigrant visa, doing so should not impact your chances of NIW case approval, but your international travel may be impacted by your non-immigrant visa status at the time.  If you would be re-entering the U.S. with a visa permitting immigrant intent (H-1B/H-4, L-1/L-2), however, you should not encounter issues with re-entry, and it should not be a problem for you to travel internationally with these visas after you file your EB-2 NIW case.



11. “I have to be on H-1B visa in Order to File an EB-2 NIW Petition.”

You can apply for a green card from any non-immigrant status, even if that status only permits non-immigrant intent. There is no USCIS regulation restricting which visa status makes one eligible for EB-2 NIW. Most of our clients file EB-2 NIW while on H1B, J-1 or F-1 OPT, but many have been in O-1, L-1, B1/B2, F-2, H4 or J-2 status during the application. Furthermore, many clients who were outside the U.S. at the time they filed their EB-2 NIW cases did not have any valid U.S. visa status, but this did not affect their chances of approval. 



Conclusion

We hope this article has clarified some common myths and misconceptions regarding the EB-2 NIW category, and we hope that we have helped you gain a better understanding of your qualifications under this category. With over 5,900 EB-2 NIW case approvals from 2016 to present, we possess the expertise to prepare a strong and successful EB-2 NIW petition for a broad range of applicants. For a free evaluation of your credentials, please email your CV to law@wegreened.com.


 

The key to our success is the way in which we present supporting evidence and provide the highest quality petition letters. With over 11,000 I-140 EB-1 ( EB-1A Alien of Extraordinary Ability; EB-1B Outstanding Researcher or Professor) and EB-2 NIW (National Interest Waiver) approvals, our firm has acquired substantial information about USCIS decisions, which gives us significant advantage over firms that only handle a small number of cases.

Based on hundreds of approvals every month and our close track of USCIS internal memoranda, AAO decisions, and judicial review decisions, we have unique insight into the USCIS adjudication trends. Not only do we apply this insight into our approaches to our clients' cases, but we also take the time and energy to carefully review all RFEs (Requests for Evidence), NOIDs (Notices of Intent to Deny), approvals, and denials issued on our cases so that we can further increase our understanding of USCIS strategies and decision-making processes so that we can advise our clients on the best ways to proceed with their petitions.

While other petitioners and attorneys may still use templates to draft recommendation letters or petition letters, our clients' recommendation letters and petition letters are tailored to their individual credentials to best persuade a USCIS officer that our clients meet the requirements of the category they are applying under and therefore their petitions deserve to be approved. To provide the best EB-1 and EB-2 NIW services, our law firm only selects attorneys who have received their professional Juris Doctor degrees from the top law schools in the U.S. and who have garnered rigorous analytical skills through years of experience.


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