EB-2 NIW Frequently Asked Questions
What is the difference between Regular EB-2 Visa and EB-2 NIW (National Interest Waiver) Petition?
For an regular EB2, the US employer must act as the petitioner and must have a labor certificate before filing the form I-140 for the foreign national. Qualifications must be established for the foreign national. For an EB2 NIW case (National Interest Waiver), the foreign national can self petition the case proving that he/she is an individual with advanced degree or exceptional ability. The petition needs the qualification of the foreign national under EB2, and demonstrate that the qualifications meets the National Interest Waiver Requirements (three-prong test in the Matter of Dhanasar Decision).
Who can file a petition under EB2 NIW?
An employer can petition for the foreign national. The foreign can also go through a self-petition process proven that he is an individual with Advance Degree or Exceptional Ability.
What does EB2 NIW waive?
The National Interest Waiver waives the Labor Certification Process and its need of an offer of employment.
What if one only has a Bachelor’s Degree, and not a Master’s or above?
The criteria for an advanced degree can be satisfied with a bachelor's degree and at least five years of progressive post-baccalaureate experience in the specialty if the foreign national only holds one United States baccalaureate degree or a foreign equivalent. The foreign national must demonstrate that he has "exceptional ability" if this requirement has not been reached.
What is “exceptional ability” for the purpose of EB2 petition?
Foreign nationals with remarkable talent in the arts, sciences, or business make up the second employment-based preference's other group. For the sake of being eligible for the second employment-based preference, athletes may be deemed aliens with extraordinary ability in the arts.
Who has “exceptional ability”? What document qualifies then as evidence of “exceptional ability”?
The term "extraordinary talent" is not defined by law. The law does specify that the foreign national must possess a level of skill above what is typical in his or her area, though.
A petitioner must provide evidence of at least three of the following in order to prove remarkable skill in the sciences, arts, or business:
a certified copy of the foreign person's academic record demonstrating that they possess a degree, diploma, certificate, or other accolade from a college, university, school, or other institution of higher learning in the subject area of outstanding aptitude;
attestation in the form of letters from the foreigner's present or previous employers demonstrating that they have at least 10 years of full-time experience in the field;
a certificate for a specific profession or occupation, or a license to practice the profession;
evidence that the foreigner is being paid on command or receiving some form of compensation for exceptionally talented services;
proof of professional association membership; or
Evidence of acknowledgement by peers, authorities, or commercial or professional organizations for accomplishments and noteworthy contributions to the industry.
May other evidence be considered in addition to the listed six criteria of "exceptional ability"?
Yes. In the case that the foreign national cannot supply the type of evidence described above, the USCIS has stated that I will take into account comparable material that is pertinent to the foreign national's application.
For the purposes of an EB2 petition, may a foreign medical degree be accepted as the equivalent of a US M.D. degree?
A foreign medical degree may be accepted as the equivalent of a US M.D. degree if certain requirements are satisfied at the time the labor certification application is submitted. The non-resident alien must demonstrate that:
has received a foreign medical degree from a medical school that requires a foreign beneficiary to obtain a bachelor's degree equivalent to a bachelor's degree requirement for admission in the United States
has received a foreign medical degree, and a foreign education credential evaluation describing how the foreign medical degree is equivalent to a medical degree obtained from an accredited medical school in the United States is provided, or
has a foreign medical degree and has passed the National Board of Medical Examiners Examination (NBMEE) or an equivalent examination, such as the United States Medical Licensing Examination (UDMLE), Steps 1–3.
Who qualifies under EB2 NIW (National Interest Waiver)?
A foreign national who qualifies for the EB2 Visa and
A foreign national who passes the three-part test in Dhanasar Decision:
a. The proposed endeavor has significant merit and national significance.
b. Well-positioned to move the proposed project forward
c. Significant advantage in terms of "national interest"
What form does EB2 NIW (National Interest Waiver) petition file?
EB2-NIW includes the filing of Form I-140.
How can an EB2 NIW (National Interest Waiver) petition be filed?
The form I-140 should be mailed to the designated service center together with the supporting evidences.
Where should you send your EB2 NIW (National Interest Waiver) petition package?
You may find the precise mailing instructions on the USCIS website here.
How can I complete and answer all the questions of the Form I-140?
The I-140 Form is used for Alien Worker Immigrant Petition. Filing under the categories of EB-1 Alien of Extraordinary Ability, EB-1B Outstanding Researcher/Professor, and EB2-NIW (National Interest Waiver) must complete the form and submit it to the USCIS along with supporting documentation. The I-140 form will be the first thing immigration officers look at to learn the basics about the case. As a result, it is critical to correctly answer all of the questions on the form. Any incorrect information provided may result in an RFE (Request for Evidence) or even the case being denied.
How can I organize the exhibits for an I-140 Petition Filed in EB 2 NIW?
General Instructions in preparing the package of supporting materials for your I-140 petition, the following are general instructions:
Use binders or folders that are not difficult to assemble.
Use ACCO fasteners to keep thick or bulky applications or petitions together.
To assist the USCIS officer in locating items listed as attachments, use tabs. Make a note of the exhibit number on the tab. To facilitate filing, the tabs should be placed at the bottom of the exhibit divider page (rather than on the side).
Instead of staples, use ACCO fasteners or heavy clips.
Unless otherwise specified, originals should not be submitted. When possible, avoid submitting oversized documents.
All foreign language documents must be certified translated. The translator must certify that he or she is competent to translate and that the translation is correct. The USCIS website provides the following translation guidance.
Make use of a piece of colored paper that will includes the exhibit number and a brief description
Is a job required for EB2-NIW (National Interest Waiver)?
No. It is not compulsory to have a job.
What are the major advantages of applying for EB2 NIW?
No labor certification is required
No Job offer or permanent job position is compulsory
Self-petition is allowed
Most Visas are current excluding for the ones coming in China and India.
What criteria does the USCIS use to decide whether to grant an NIW (National Interest Waiver) in an EB2 case?
New criteria for securing EB2 NIW petitions were set by the Matter of Dhanasar decision, which the USCIS adopted on December 27, 2016. When assessing a request for an EB2 NIW, the AAO (Administrative Legal Appeal Office) determined that three elements must be taken into account:
1. The proposed project by a foreign national has great quality and is significant to the country,
2. The proposed work can be advanced by the Foreign National, and
3. Overall, it would be advantageous to exempt the foreign national from the job requirement.
What supporting evidence will significantly contribute to the national interest?
Publications & Citation Records (Journals, Articles, Book Chapters, and Books)
Published Materials about the Foreign National
Patents, Contracts, Licenses, and Technology Transfers
Evidence of Others Relying on the Foreign National's Work
How many publications and citations are needed for the EB2 NIW requirements?
There is no standard set of minimum requirement for publication or citation as it is still to be determined on a case-to-case basis by the USCIS.
Can I file under the category EB2 NIW (National Interest Waiver) and another category simultaneously?
Yes, you can file to another visa category but you must create a separate file for the Form I-140 petition, with the required separate filing fee and supporting documentation for each requested visa category.
Does priority date matter in a EB2 NIW (National Interest Waiver)?
Priority dates are important primarily for people from China and India because they are not current for citizens of these two nations. The regression may last for a few of years. The priority date under the EB-2 visa is often current for foreign nationals born in the other countries. However, the Department of State (DOS) warns that the priority date may not be valid for the months preceding the fiscal year's final month (October).
Can EB2 NIW (National Interest Waiver) be withdrawn?
Yes, the representative of the Form G-28 or the petitioner may send a letter requesting to withdraw the I-140 to the USCIS.
If my EB2 NIW petition gets denied, how long is the wait to file under EB2 NIW or other categories?
After your prior application was rejected, you have an unlimited amount of time under the law to file your EB2 NIW petition. No matter whether classification is involved, a previously denied petition does not prevent you from submitting another petition in the future. However, it is not advised to merely submit an identical petition once more unless your situation has changed.
How should I organize the evidence with the petition?
Follow the tips below for how to organize your evidence:
When filing the petition, include all necessary supporting papers and evidence. If the required proof outlined in the rules and regulations is not originally submitted, an I-140 petition may be refused without issuing a request for evidence.
If providing photocopies of documents, provide clear copies.
A translation into English must be included with every document written in a foreign language. The certified translator for the English translation must attest in writing that "the translation is true and accurate to the best of the translator's ability" and that they are qualified to do so. It is beneficial to staple the English translation to the paper in the other language.
The name of the foreign person should be highlighted in the pertinent articles if the publications or citations of the foreign national are being documented. A dissertation, thesis, or research paper that the foreign national has produced, or one in which their work has been cited, does not have to be submitted in its entirety. Include the title page, any passages that cite the work of the foreign author, and the "work cited" section or bibliography.
The qualifying criteria that each exhibit is submitted to establish for petitions backed by a significant amount of documentation are tabbed and labeled at the bottom of the first page of each exhibit. An exhibit should be noted in the exhibit list if it is being offered to satisfy multiple qualifying requirements.
What is a letter of recommendation for EB2 NIW (National Interest Waiver) green card?
A letter of recommendation, also known as a reference letter, is written by an authority figure in the foreign national's field of expertise or another related or allied sector. The petition for employment-based immigration benefits must include recommendation letters. The adjudicating officers can decide whether a foreign individual meets the requirements set forth in the Matter of Dhanasar decision by considering the objective evidence offered, given that they are rarely specialists in your subject. Among these, a recommendation is one of the most crucial.
Whom should I refer to in obtain letters of recommendation for my EB2 NIW?
Strong letters from the international applicant's "inner circle" and "outer circle" classmates are required. People who the foreign national has collaborated with in academia or business make up their inner circle. Even though these letters are frequently the best, they may not be taken as seriously because they may be biased..
What information should be included in the recommendation letters for my EB2 NIW?
These are the things that should be included in a recommendation letter:
Qualifications of the recommender: The description of the recommender must be included in a recommendation letter. An explanation of the recommender's credentials to evaluate the overseas applicant's work should be included in the support letter if they make any comments about their accomplishments or research.
Helpful Testimonials from Experts: Your petition needs expert endorsements of your achievements. However, keep in mind that you should use expert testimony to support your case that you satisfy the requirements of the law.
Substantive Information: The high level of distinctive skill the foreign national holds should be emphasized in a strong recommendation letter. If it is a letter of reference from a professor or employer, it should outline the duties and qualifications of the position for which the foreign national is applying. Although a job offer is not necessary for EB2 NIW petitions, the foreign national is one of the few few who can cite to such a position in a recommendation letter from an employer. Additionally, letters of recommendation that briefly summarize the foreign national's efforts and characterize him or her as knowledgeable, but lack details about how those activities significantly served American interests, are acceptable.
How many recommendation letters are needed for an EB2 NIW (National Interest Waiver) case?
It is generally suggested to have at least four to six recommendation letters. The USCIS didn't set forth a specific number of recommendation letter in an EB2 NIW case.
What assistance does your firm provide concerning drafting of recommendation letters for my EB2 NIW case?
We will give you thorough information about recommendation letters and walk you through their function, structure, and content.
We will talk with you about possible letter writers for your recommendations.
You give us specific details about the standing and knowledge of the people making the recommendations, your personal connections, how your study relates to theirs, etc.
We will help you write the recommendation letters once you receive the supplied information.
The drafts of the recommendation letters are sent to the recommenders for their approval.
We'll examine those recommendation letters that have undergone significant revision to see whether we need to have the recommender sign a new, updated version.
What if I change jobs while EB2 NIW (National Interest Waiver) petition is pending?
If you file your own petition, your case should not be impacted if you switch employment because your petition will still be in effect. Your petition can be rejected after RFE (Request for Evidence) if your new position does not continue to meet the criteria for the EB2 NIW category .
May a F-1 student Visa or J-1 visiting scholar holder petition for EB2 NIW (National Interest Waiver) category? Do I have to wait to apply for the Green Card after my graduation and changing the visa to H-1B?
Although the F-1 or J-1 visa is a non-immigrant visa and does not permit immigrant intent, this does not exclude the holder from applying for a Green Card. Although a holder of an F-1 or J-1 visa cannot have immigrant intent when applying for a non-immigrant visa, the intent may be altered once the non-immigrant visa has been granted.
It is untrue that a person must switch to an H-1B visa, which permits immigrant intent, before submitting a Green Card application.
What is the difference between EB2 NIW (National Interest Waiver) and EB1-A (Alien of extraordinary ability) applications?
The standards for EB2 NIW and EB1-A are distinct, and the application preparation for these two classifications is very different. Successful EB2 NIW claims are not just for non-US citizens who have achieved the pinnacle of their professions. It will be easier to pass the petition if you provide evidence and arguments that present the case in the best possible light. For instance, it's crucial that the petitioner interpret the foreign national's field as narrowly as they can while still coming off as credible. The foreign national will be compared to a considerably smaller group of US peers by constricting the frame of reference. It should be noted that the AAO may be suspicious of a petition that interprets the field of the foreign national too narrowly.
Documentation supporting the definition of the foreign national's expertise field is required. There isn't much of a difference between these two classifications for the I-485 application once your I-140 has been granted, though. It is feasible to simultaneously submit two petitions, such as an EB@ NIW and an EB1-A, as many of our clients did. Multiple filings are not specifically forbidden by law, and each matter should be decided separately.
If I have not published articles in journals within my field, may I still apply for an EB2 NIW category?
Yes, although in many cases publications would help to improve chances of acceptance because they aid to establish the unique contribution and authorship, there is no requirement that you have published articles in order to apply for or receive permission on an EB2 NIW petition. The petition may still be supported by presenting proof that satisfies the legal requirements. The foreign national may still be eligible under EB2-NIW, for instance, if an entrepreneur can demonstrate that his or her proposed endeavor has the potential to have a significant influence on the US economy, such as producing cutting-edge technology.
I am a J-1 holder subjected to the two-year foreign country residency requirement. May I apply under EB2 NIW category and get my J-1 waiver later?
Yes, You can, in fact, apply for your J-1 waiver now and your EB2 NIW later. The 212(e) restriction solely impacts the I-485 (in the US), or Immigrant Visa Processing, procedure and does not effect I-140 EB2 NIW (outside the US)
You can submit an I-140 petition without having a J-1 waiver. The two-year foreign residency requirement does not exempt you from filing an I-140 petition, but it does restrict you from changing your status from J-1 to permanent residency. You can simultaneously prepare for the J-1 waiver and the I-140.