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EB2-NIW (National Interest Waiver)

EB2-NIW National Interest Waiver is a shortcut to EB2 green card by proving that your presence in United States will be in the National interest of the United States. This means that you will not need to abide by the PERM process or even, if you are currently working, employers need not sponsor an EB2 for you. It also allows self-petitioning, and has no prevailing wage requirements.

Qualifications for EB-2 NIW (National Interest Waiver):


First Requirement - Advanced Degree or Exceptional Ability 

For you to be able to be eligible for an NIW petition, you must have an advanced degree or exceptional ability in science, arts, or in business.

An advanced degree, Master's or PhD, JD, MD, etc. An advanced degree is defined as having taken at least one year of graduate study beyond a bachelor's degree. Furthermore, a Four year's bachelor's degree plus five years of progressive work experience would also qualify.

Exceptional ability means that you meet one or more of the following criteria: a person with exceptional ability has a level of intellectual capability that is substantially higher than that typical for members of their age and education group. Be prepared to show you qualify for 3 of the following criteria:

This official academic record is certified by the school or institution where you earned it. It shows 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.

  • A Letter of documentation with at least 10 years of full-time experience in your occupation

  • A certification or a license to practice your profession

  • A commanded salary and other renumeration that serves as evidence which demonstrates your exceptional ability

  • Membership in a professional association

  • Achievements, significant contributions and recognition to your industry or field supplemented by your peers, government entities, professional or business organizations


Second Requirement - National Interest Waiver

To provide evidence of an advanced degree or exceptional ability , you must meet the  3 NIW criteria below in order to demonstrate that it is in the national interest that USCIS waive the requirement,


1.    The foreign worker's  has substantial merit and national importance;
2.   The foreign worker is well positioned to advance the goals of their work. Using a combination of specialized knowledge and cultural values; and
3.  on balance, for it to be beneficial for the United States to waive the job offer and labor certification requirements.

Requirement for EB-2 (Second Preference of Employment-Based Immigration)

 

The petitioners first need to meet the basic entry requirement for the second preference classification (EB-2) in order for NIW (National Interest Waiver) to then be considered having a PhD is NOT the only way to meet the basic eligibility requirements for EB-2. If you do not have a Ph.D. you still have some options that can be utilized if you are finding it difficult to meet all of the eligibility criteria, even without a PhD.

​For EB-2 Advance Degree:

Possessing an advanced degree, such as a master’s degree or MBBS/MD/BDS/DDS degree is an excellent way to gain credibility and credibility in your industry.

To qualify for this, the applicants must possess an advanced degree (which is defined by the USCIS as a baccalaureate or bachelor’s degree with 5 years of progressive work experience in the field).

For EB-2 Exceptional Ability:

  • An academic record that shows that a foreign individual has a degree or certificate related to exceptional ability.

  • Evidence that includes letters from the former or current employers of a foreign individual stating that they have at least 10 years of experience in the field.

  • A license to practice the profession or a certification in a particular field and profession;

  • A commanded salary and other renumeration that serves as evidence which demonstrates your exceptional ability

  • Membership in a professional association

  • Achievements, significant contributions and recognition to your industry or field supplemented by your peers, government entities, professional or business organization

Documentary Evidence to support the National Importance for PhD Students and PhD Candidates

It's important to note that the proposed project's importance to the US should also be taken into account.
In most cases, the US Citizenship and Immigration Services (USCIS) will consider the project's potential impact on the country when it comes to deciding if it has national importance.
It's generally easier to demonstrate that scientific research has national importance when it's conducted both in the academic and industry sectors. For instance, advances in a certain field can be tied to a specific objective, such as security or healthcare.

Evidences that can be submitted may include documentation:


a.    Has national or even global implications,
b.    Has significant potential to employ US workers and have positive economic effects;
c.    Can broadly enhance the welfare of the society or provide cultural or artistic enrichment; and
d.   Can Impact a matter that a government entity has set to as having national importance.


How EB-2 NIW process work?

If you are an employee of an organization that wants to sponsor an EB-2 immigrant worker, you must first file a Form I-140. In order to qualify for an EB-2 immigrant visa, your employer must show that it can still pay the offered wage at the time of the priority date. To demonstrate this, your employer should use an annual report or a federal income tax return or an audited financial statement.


Family of EB-2 Visa Holders
If your I-140 is approved, your unmarried children and spouse may be eligible to become immigrants


NYSDOT and the Three Prong Test for Artists

Although the US Citizenship and Immigration Services (USCIS) has not issued specific regulations or guidelines for artists seeking to become an EB2-NIW immigrant, it is still possible to get approved for the program through the three-prong test.


1.    The proposed employment position should be in an area of Substantial Intrinsic Merit - In order to demonstrate this, the work should be related to a vital national goal and should be beneficial to the country. An artist should be able to contribute to the cultural expansion of the nation and bring the arts to society. An artist can also contribute to the development of a particular medium or technique. In order to determine the significance and implications of their work to the country, it is important to consider their work's context.


2.    The second requirement is that the benefits of employment be in National Scope -This means that the work of an individual cannot be restricted to a specific geographic region. For example, a musician can contribute to the nation's artistic culture by performing across the country and selling their music digitally.

Any artist whose work has exhibited or been showcased across the country can argue that their work has national scope. If the benefit of their work extends beyond one geographic region, then they can also argue that their work has national scope. For instance, if an artist has developed a technique that will be utilized by other artists, then they can argue that their work has national scope. Although the frame of argument will vary depending on the medium and body of work of the artist, these examples show the various ways to argue national scope.


3.    The requirements for national scope include that the beneficiary should serve the country at a higher level than the average worker or must serve its National Interest - In addition to letters of recommendation, other evidence such as media reports and sales can also prove the claims made in the letters.

 

To be considered for National Interest, an individual must first prove that their work has had an impact on their field and that they have risen to a higher level than others. Aside from this, other evidence must also be presented to support their claim.

Physician seeking NIW (National Interest Waiver)

In 1999, a law was enacted that made it easier for foreign physicians who are seeking to maintain their second employment-based residence in the US to qualify for a national interest waiver.

1. the physician agrees to work full time in the field designated by the Department of Health and human

service or in a veterans administration hospital, and

2. A federal agency or the  State Department of Public health has to determine that the work of the Physician is in the public's interest

 

Five-year aggregated service: For physicians who have worked in an area of shortage or a Veterans Affairs Hospital for five years, they are not eligible for adjustment of status or immigrant visas. This is because the time they have spent working in the hospital or shortage area cannot be counted toward their J-1 status.

Based on the USCIS the Physician must agree the fulltime practice in HHS designated Medical Health Professional Shortage Area (HSPA) or a Mental Health Professional Shortage Area (HPSA). Individuals seeking to be eligible for a waiver must serve in a Veterans’ Affairs Medical Center and be licensed in one of the following fields of medicine: family/general medicine, pediatrics, general internal medicine, obstetrics/gynecology, and psychiatry.

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