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The Benefits of Petitioning Under the EB-2 National Interest Waiver (NIW) Standard

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While our clients come from a myriad of different backgrounds and regions of the world, there are many potential benefits to petitioning under the NIW category given a client’s particular background and nationality. These potential benefits can include: a) generally applicable benefits, b) benefits applicable to a client based on their nationality, and c) benefits based on the client’s particular occupation and research activities.

General Benefits of Petitioning Under the National Interest Waiver (NIW) Standard

Although each client presents a unique case that must be closely evaluated by an attorney, in general, the NIW provides individuals having advanced degrees with the opportunity to petition under a standard that is generally easier than that required by the EB-1A. For instance, a researcher with fewer than 100 citations to their publications might find it easier to win approval under the NIW standard than the EB-1A. In addition, unlike lower preference categories, visas are currently available for most countries under EB-2, meaning that many individuals will be eligible to apply for an immigrant visa or adjustment of status without having to wait. But even for individuals from countries where visas are not currently available under EB-2, there can still be benefits of filing a NIW when combined with certain underlying non-immigrant visa statuses.

Regional Benefits of Petitioning Under the National Interest Waiver (NIW) Standard

Given our extensive experience with NIW petitions, especially with particular regions where many of our clients reside, we have identified several potential benefits of filing an NIW depending on a client’s particular nationality.

China

People Born in China- Benefit of Having an National Interest Waiver (NIW) Approval

Visas are not currently available for individuals born in China petitioning under EB-2. As a result, those individuals must wait to be granted permanent residence even with an approved I-140. However, we have identified that filing an NIW petition can possibly be beneficial for clients who may not have a strong EB-1A case but who presently have a valid underlying non-immigrant visa status.

Benefit of Having an National Interest Waiver (NIW) Approval for H1B Holders Born in China

One of the most common ways our clients from China can continue to work and live lawfully in the US while waiting for a visa to become available under EB-2 involves working on an H-1B visa. Given the amount of time this non-immigrant visa status can provide clients on its own, filing a NIW can allow a client to essentially petition, receive approval, and wait for an immigrant visa to become available for them before the expiration of their H-1B. Since H1B allows immigrant intent, people holding H1B visa have the freedom to travel internationally and extend their H1B visa even after filing NIW. Moreover, an approved I-140 allows these individuals to extend their H-1Bs in 3 year increments beyond the usual 6 year limit for H-1B until an immigrant visa becomes available. In addition, an approved I-140 for an H-1B holder can allow their H-4 dependents to receive an Employe Authorization Document (EAD) that would not otherwise be available for them while waiting for an immigrant visa to become available. In short, an approved NIW can provide a great deal of benefits for individuals with an H-1B non-immigrant status both in terms of their capability to remain lawfully present in the U.S. as well as providing employment benefits for their dependents.

Benefit of Having an National Interest Waiver (NIW) Approval for F-1 (OPT/STEM) Holders Born in China

Another possible benefit of an approved NIWis for those clients pursuing their degree on F-1 status or working under the F-1 OPT/STEM non-immigrant visa program. Considering the retrogression for people born in China under EB-2 is usually not significant (3-5 years) and that this non-immigrant visa category provides a beneficiary with the potential to remain in the US for quite a few years on F-1 status and a total of up to 3 years after the completion of the underlying education program, individuals with an approved NIW can remain lawfully present while waiting for an immigrant visa to become available by relying on the time allotted on the F-1 and OPT/STEM program. So with good filing strategy and careful calculation of petition timing, people born in China holding F-1/OPT/STEM status can benefit from NIW approval. However, it is important to note that this particular non-immigrant visa category is not dual-intent and any individual considering this route is highly encouraged to consult with an attorney beforehand, as petitioning for the I-140 may demonstrate immigrant intent and can increase the complications of international travel and obtaining OPT/STEM.

In short, there are many ways for an individual born in China to benefit from an NIW even though they will not be able to immediately apply for permanent residency.

India

People Born in India- Benefit of Having an National Interest Waiver (NIW) Approval

Similar to those clients born in China, immigrant visas are not currently available for individuals born in India and petitioning for an NIW. In fact, current backlogs are even longer for Indian-born individuals than people born in China. As a result, those individuals must wait to be granted permanent residence even with an approved I-140. However, we have identified that for many clients, filing an NIW petition can possibly be beneficial for clients who may not have a strong EB-1A case but who presently have a valid underlying non-immigrant visa status. One of the most common ways our clients from India can continue to work and live lawfully in the US while waiting for a visa to become available under EB-2 involves working on an H-1B visa. Given the amount of time this non-immigrant visa status can provide clients on its own, filing a NIW can allow a client to essentially petition, receive approval, and wait for an immigrant visa to become available for them before the expiration of their H-1B. Moreover, an approved I-140 allows these individuals to extend their H-1Bs in 3 year increments beyond the usual 6 year limit for H-1B until an immigrant visa become available. In addition, an approved I-140 for an H-1B holder can allow their H-4 dependents to receive an Employed Authorization Document (EAD) that would not otherwise be available for them while waiting for an immigrant visa to become available. In short, an approved NIW can provide a great deal of benefits for individuals with an H-1B non-immigrant status both in terms of their capability to remain lawfully present in the U.S. as well as providing employment benefits for their dependents.

In short, there are many ways for an individual born in India to benefit from an NIW even though they will not be able to immediately apply for permanent residency.

People Born in Iran- Benefit of Having an National Interest Waiver (NIW) Approval

Majority of our clients petitioning for NIW were born in Iran and these clients’ cases, like most of our NIW cases, have very high approval rate. In addition, many of our clients from Iran were studying in the STEM fields, which makes them good candidates for NIW approval.

There are several potential benefits to petitioning for an NIW for individuals born in Iran. In particular, one of the most beneficial aspects of petitioning under this category is the fact that immigrant visas are currently available for people born in Iran under EB-2 so unlike those born in China and India, Iranians with NIW approval are eligible to receive their green cards (after the approval of the application for adjustment of status or immigrant visa processing) without waiting. Combined with the fact that this category may present a lower threshold for many individuals with fewer credentials to their research, this category provides a very fruitful area to consider petitioning under, assuming that the individual would otherwise meet the requirements for this category. Petitioning under the 2nd preference NIW category allows individuals born in Iran to potentially meet what we generally consider to be a lower evidentiary threshold as well as not having to wait for an immigrant visa to become available.

Because of these benefits, many of our clients from Iran chose to work with our firm to petition for NIW at early stage of their career holding F-1/OPT/STEM status, and our vast experience in the NIW category makes case approval much easier for them.

Recently, we have also helped many Iranian clients have their NIW approved even though they were outside the U.S. Some of them were residents in Canada or other European countries while others were still in Iran. Based on the achievements in their fields of expertise and their active engagement in research and publishing papers, we are able to argue strong NIW cases.

Taiwan, Vietnam, South Korea, Nepal, and Pakistan etc.

Much like those individuals with an Iranian nationality, many other countries such as Taiwan, South Korea, Nepal and Pakistan can petition under this category and deprive substantial benefit from doing so given the fact that immigrant visas are currently available for many countries (basically for all the counties other than India and China). Combined with the fact that this category may present a lower threshold for many individuals with fewer credentials to their work, this category provides a very fruitful area to consider petitioning under, assuming that the individual would otherwise meet the requirements for this category. Petitioning under the 2nd preference NIW category allows individuals born in many countries to potentially meet what we generally consider to be a lower evidentiary threshold as well as not having to wait for an immigrant visa to become available.

People Born in Taiwan- Benefit of Having an National Interest Waiver (NIW) Approval

Visas are available under the EB-2 category for people born in Taiwan so with an NIW approval, individuals born in Taiwan are eligible to receive a green card without waiting. A good number of our clients petitioning for NIW are from Taiwan and similar to Iranian clients, many of them were studying in STEM program. With outstanding achievements in their field of expertise, these clients were good candidates for NIW approval and the majority of our cases filing on behalf of clients from Taiwan were approved.

Most of our clients from Taiwan chose to file NIW on F-1/OPT/STEM status but some of them waited until they were on H1B status to file NIW. We have found that as long as the applicant have sufficient credentials to pass the requirements of law, their visa status does not affect their chance of case approval.

People Born in Vietnam - Benefit of Having an National Interest Waiver (NIW) Approval

Each year, we helped many clients from Vietnam have their NIW approved. We have found that many clients from Vietnam possessing good credentials for NIW approval.

But one of challenges is that many of these Vietnamese clients were here on J-1 status subject to Immigration and Nationality Act, Section 212(e), two-year home-country physical presence requirement. And it is usually very difficult for them to waive such a requirement so they need to go back their home country after they finish their J-1 program. Nevertheless, it does not affect their NIW petition. With good petition strategy and careful calculation of the petition timing, many of our clients from Vietnam eventually received their green cards through NIW approval.

People Born in South Korea - Benefit of Having an National Interest Waiver (NIW) Approval

Quite a few of our NIW approvals are petitions for clients from South Korea. Like most of our NIW cases, petitions we filed on behalf of these clients enjoy very high approval rate. These years, we have had more and more clients interested in filing NIW while they were still in South Korea. Many of them worked for internationally-acclaimed companies such as Samsung. Because of their achievements and nature of their positions, we were able to successfully argue their NIW cases even if they did not have a U.S. job or a solid U.S. job offer.