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

2020-02-13, BY WeGreened

North America Immigration Law Group has successfully helped more than 10,000 clients obtain NIW approval, with an overall approval rate close to 100%. 

Based on our extensive experience in the 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 (National Interest Waiver) is only for scientists and researchers”
Many people think that only scientists and researchers can apply for EB-2 NIW (National Interest Waiver). This is not true. We have successfully filed EB-2 NIW (National Interest Waiver) 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. 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 has both substantial merit and national importance.
  2. The waiver applicant demonstrates that he/she is well-positioned to advance the proposed endeavor.
  3. The waiver applicant demonstrates 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 widening 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 (National Interest Waiver)”
Since EB-2 NIW (National Interest Waiver) 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 for an I-140 petition under EB-2 NIW (National Interest Waiver), 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 your proposed endeavor has national importance and that you are well-positioned to advance the proposed endeavor. 
Our firm has successfully petitioned thousands of EB-2 NIW (National Interest Waiver) cases for clients who were either residing outside the U.S. at the time of filing NIW or who were in the U.S. in their Ph.D. program without employment authorization. Our attorneys always strive to come up with the best strategies to argue that our client’s proposed endeavor meets the Dhanasar requirement through detailed discussions with our clients how to collect and submit evidence that clearly illustrates their proposed endeavor.  

3. “If My EB-2 NIW (National Interest Waiver) is approved, I have to keep working for the same employer”
As noted above, EB-2 NIW (National Interest Waiver) is a self-petitioned category. As such, it is not tied to a particular job. A petitioner who has filed an I-140 under the EB-2 NIW (National Interest Waiver) category is allowed to change jobs as long as they continue to satisfy the requirements of the category—namely, they must advance their proposed endeavor and their proposed endeavor must continue to be nationally important to the U.S. 
For an EB-2 NIW (National Interest Waiver) case, you are the petitioner as well as the beneficiary of your case, as opposed to an employer-sponsored category, in which the employer is the petitioner but you are the beneficiary. Under EB-2 NIW (National Interest Waiver), your I-140 approval is attributed to you, rather than your employer so the I-140 petition 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 without difficulty while their EB-2 NIW (National Interest Waiver) was pending or after their I-140 was approved.

4. “My employer is filing EB-2 PERM, so I can’t file EB-2 NIW (National Interest Waiver)”
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 file an employer-sponsored EB-2 PERM petition and a self-petitioned EB-2 NIW (National Interest Waiver) petition at the same time.
Because EB-2 NIW (National Interest Waiver) is a self-petitioned category—as described above—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 the new one. 

5. “I was born in India/China, there is a long wait time for me under the EB-2 category, so EB-2 NIW (National Interest Waiver) 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 (National Interest Waiver) case is not helpful or that you would derive no benefits from having an approved EB-2 NIW case.
First, if you have an H-1B visa, your employer can extend your H-1B visa beyond the 6 year cap if you have an approved I-140 or an I-140 petition that has been pending for more than 365 days. With an approved EB-2 NIW (National Interest Waiver), 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 NIW (National Interest Waiver), you will have an early priority date that you can port to your future EB-1 petition. The EB-1 visas have been retrogressed for both born in India and China. As such, securing an early priority date will help the overall timeline to file I-485 or proceed with Immigrant Visa Processing. 

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

A Ph.D. is not strictly required for EB-2 NIW (National Interest Waiver). Although the Dhanasar decision indicated education background as one of the factors to show that one is well-positioned to advance the proposed endeavor, we have helped thousands of clients without a Ph.D. obtain NIW approval. For more information, please see another article on our website where we shared our experience to help Ph.D. students obtain EB-2 NIW (National Interest Waiver) approval

To elaborate on the requirements of law, in order to qualify under EB-2 NIW (National Interest Waiver), 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 
  1. 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 
  2. 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). 
(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 (National Interest Waiver)”
The USCIS does not have any predetermined number of publications or citations that would qualify a petitioner under the EB-2 NIW (National Interest Waiver) 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.
However, 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 your work 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 (National Interest Waiver)”
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 (National Interest Waiver), 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 (IVP), 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. 
Please click here for more information regarding applying for National Interest Waiver (NIW) from outside of the U.S.

9. “I have to be in the United States for a long period of time before I can file EB-2 NIW (National Interest Waiver)”
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 (National Interest Waiver) application. However, one cannot enter the U.S. with settled immigrant intent on a visa that does not allow immigrant intent. As such, it cannot be your intent to apply for a green card at the time you apply for or enter on a visa such as F-1/F-2, J-1/J-2, TN or B1/B-2. 
Please discuss with our attorney if you are on one of the visas that do not allow immigrant intent. 

10. “I cannot leave the U.S. after I file EB-2 NIW (National Interest Waiver) or my case will be denied”
No, leaving the U.S. alone won’t affect your pending or approved EB-2 NIW (National Interest Waiver).
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 (National Interest Waiver) 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 (National Interest Waiver). Most of our clients file EB-2 NIW while on H-1B, 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. 
We hope this article has clarified some common myths and misconceptions regarding the EB-2 NIW (National Interest Waiver) category, and we hope that we have helped you gain a better understanding of your qualifications under this category. With over 10,000 EB-2 NIW case approval from 2016 to present, we possess the expertise to prepare a strong and successful EB-2 NIW (National Interest Waiver) 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 37,000 I-140 EB-1 ( EB-1A Alien of Extraordinary Ability; EB-1B Outstanding Researcher or Professor), EB-2 NIW (National Interest Waiver) and O-1 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 more than one thousand approvals 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 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. With the insight, we are able to 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.