Immigration to the United States: Looking into EB-2 NIW

The National Interest Waiver is a procedure that can bypass the labor certification process, which, in turn, is a prerequisite when one wishes to obtain permanent residence. Key in this immigration policy is the second preference EB-2 employment-based category following the green card process.

Through the Immigration and Nationality Act, the Attorney General can waive the job offer requirement in the context of EB-2 immigrants. Services are considered vis-à-vis national interests. Briefly, through national interest waivers, an alien can self-petition and proceed with his or her green card application at the U.S. Citizenship and Immigration Services (USCIS) office. Furthermore, a green card petition can be filed without a labor certification. It’s best to seek immigration assistance to know you are doing it right.

The USCIS Administrative Appeals Office is in charge of the analytical framework used to determine the eligibility of NIW and the test governing its adjudication.

You may consider applying for a green card through NIW if you:

1. Are a foreign national with exceptional ability and skills (in business, the arts, culture, education, science, technology, or health) who can provide at least three of these proofs:

    • academic records, diploma, or certificates from a university or learning institution
    • documented letters showing ten years or more of full-time experience
    • professional license
    • evidence of salary or remuneration
    • professional association memberships
    • certificates for achievements or significant contributions from government entities, peers, and professional organizations

EB-2 NIW2. Are a professional with advanced degrees, a Ph.D. student, or someone with five years or more of post-bachelor degree experience

3. Are employed in an area of national importance and substantial intrinsic merit

    • In the relevant statute, the endeavor is considered as national in scope and importance if it leads to significant job creation and quantifiable economic growth in a depressed area or disadvantaged region. Broadly, it must aim to improving the economy, working conditions, wages, youth training programs, health care, housing, or the environment.

4. Can persuasively demonstrate that the endeavor can be advanced as proposed

  • Diagrams, models, plans for future activities, documentation of progress, and interest from stakeholders may help in seeking the waiver. 
  • It must also be proven that waiving the labor certification and job offer requirements will be beneficial under the EB-2 category, as provided in the immigration law.

5. Can present, as petitioner seeking exemption, a national benefit that outweighs national interest that is inherent in alien labor certifications

  • The country’s labor certification process protects U.S. workers. If a U.S. worker can meet minimum qualifications and can take the job, no alien labor certification will be granted to the employer. National interest must also not be warranted for the sole purpose of merely improving local unavailability or shortage of qualified workers.

If you intend to apply for a green card based on NIW, the following are the documents you may need to prepare. These, however, still largely depends on the proposed endeavor. An immigration attorney can help you prepare documents you need to submit to the appropriate government agency.

    • A copy of your Notice of Approval indicating current visa status (H, F-1, J-1, among others)
    • Resumé with employment and research history
    • Transcripts or notarized certificates showing an educational background comparable to a US-awarded master’s degree or higher
    • Copies of publications, citations, comments by journal referees, conference invitations, academic awards, honors
    • Your annual salary
    • Recommendation letters indicating that the area is of substantial merit, the candidate’s proposed activity is national in scope waiving the labor certification, and job offer requirements under the EB-2 category would be beneficial.
    • Other relevant evidence

For more information on how to get a green card through NIW, the green card process, or immigration laws in general, contact us at AmLaw Group. Talk to an immigration lawyer right now.

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