National Interest Waiver

Navigating the EB2 Visa and National Interest Waiver (NIW) Process

by

The EB2 visa, specifically the National Interest Waiver (NIW) category, is an essential pathway for highly skilled professionals seeking to obtain a U.S. green card without the need for a specific job offer. The NIW category, part of the employment-based second preference (EB2) visa, allows foreign nationals to bypass the labor certification process by proving that their work in the United States is in the national interest. This blog will address some frequently asked questions to help you understand the key aspects of the EB2 NIW process.

Understanding the National Interest Waiver (NIW)

The National Interest Waiver (NIW) is a special provision under the EB2 visa category that allows foreign nationals to self-petition for a green card. Unlike the regular EB2 process, which requires a U.S. employer to sponsor the applicant and obtain a labor certification, the NIW permits individuals to bypass these requirements. To qualify, the applicant must demonstrate that their work has substantial merit, is of national importance, and that they are well-positioned to advance their proposed endeavor in the United States. The decision to grant an NIW is based on the “Matter of Dhanasar” three-prong test, which evaluates the potential national benefit of the applicant’s contributions.

Key Differences Between Regular EB2 and EB2 NIW

One of the primary distinctions between a standard EB2 visa and an EB2 NIW is the requirement for a job offer and labor certification. In a regular EB2 case, a U.S. employer must act as the petitioner and obtain a labor certification to prove that no qualified U.S. workers are available for the job. The foreign national is the beneficiary of this petition. Conversely, in an EB2 NIW case, the foreign national can self-petition, meaning they can apply on their own behalf without a job offer or labor certification. This self-petitioning aspect makes the NIW an attractive option for individuals whose work benefits the United States but who may not have a specific employer willing to sponsor them.

Eligibility for the EB2 NIW

To be eligible for the EB2 NIW, an applicant must first meet the basic requirements of the EB2 category, which includes holding an advanced degree or demonstrating exceptional ability in their field. Advanced degree professionals typically hold a U.S. or foreign equivalent degree above a bachelor’s level or have a bachelor’s degree with at least five years of progressive work experience. For those without an advanced degree, demonstrating exceptional ability through substantial evidence of achievements and recognition in their field can also qualify them for the EB2 NIW. Once the basic EB2 requirements are met, the applicant must also satisfy the NIW criteria by proving that their work aligns with the national interest of the United States.

Advantages of the EB2 NIW

The EB2 NIW offers several significant advantages over the regular EB2 visa. Firstly, it eliminates the need for a labor certification, which can be a lengthy and complex process. Secondly, it allows the applicant to self-petition, removing the dependency on a U.S. employer for sponsorship. This independence can be particularly beneficial for researchers, entrepreneurs, and other professionals whose work may not fit neatly into a traditional employment model. Furthermore, the EB2 NIW is available to individuals both inside and outside the United States, providing a flexible option for highly skilled professionals globally.

Filing and Approval Process

It is crucial to present a well-organized and compelling case, as the approval of the NIW petition depends heavily on the quality of the evidence and the persuasiveness of the argument. While there is no fixed number of publications, citations, or recommendation letters required, the evidence must collectively demonstrate the applicant’s impact and potential contributions to the United States.

By understanding the nuances of the EB2 NIW process, eligible professionals can take advantage of this pathway to achieve their U.S. immigration goals. Whether you are an advanced degree holder or possess exceptional abilities, the EB2 NIW provides a unique opportunity to contribute to the national interest of the United States while advancing your career and life in the U.S.

We have successfully helped hundreds of clients obtain NIW green cards. If you want to obtain an NIW green card and need our help, please contact us at 305-515-0613 or info@messersmithlaw.com. We are here to assist you.

EB2 NIW No Citation Approvals

by

EB2 NIW No Citation Approvals

Many potential clients who approach us with an interest in pursuing an NIW green card wrongfully believe that the NIW classification is only open to researchers or scientists and that citations are mandatory.  This is simply not the case.  For nearly 20 years, we have been handling NIW cases for researchers with low or no citation counts and others in completely different fields.  These include clients working as physicians, IT professionals, engineers, investors, small business owners, and project managers.  Below, we’ll describe a variety of different NIW cases that we’ve handled and handled successfully.  All for clients with low or no citations.

  1. Physician from Iran.  NIW green card application made during client’s fellowship

Our firm assisted an Iran national who earned a medical science degree outside of the US but completed his internship and residency in the United States.  At the time of filing, our client had made three publications which were cited a total of 7 times.  Our client had made some other accomplishments in his field, which we highlighted in the petition to USCIS, and his NIW was approved by the Texas Service Center.

  1. Project Manger with an MBA from Nigeria

Our firm assisted a Nigerian national who worked for an oil and gas company as a project manager.  He had never done any research in his professional or academic career.  No papers, no publications, no presentations, no citations.  We were able to successfully argue his case to USCIS on the basis of his work on several different oil extraction projects.  His NIW was approved by the Nebraska Service Center.

  1.  University Instructor from Romania

Our firm assisted a Romanian national who held a PhD in one of the liberal arts fields.  Our client had published her work in professional journals but had no citations.  Zero citations.  However, we were able to show USCIS that her work has made an impact in her field regardless of the fact that her work was uncited.  Her NIW was approved by the Nebraska Service Center.

  1. Small business owner and investor from Bulgaria

Our firm assisted a Bulgarian national who purchased a small business and expanded the scope of its operations.  Our client was not a scientist or researcher and had no papers or other publications let alone any citations.  We were able to demonstrate the benefits of his work based on the number of US employees he hired, the revenues and profits from his business and the benefits he provided to his US customers.  His NIW was approved by the Nebraska Service Center.

  1. Materials Engineer from Iran

Our firm assisted a Iranian national who, at the time of filing, worked as graduate teaching assistant for a US university.  He had no papers, patents, or citations but we were able to show USCIS that he was working on a potentially important medical device that could benefit Americans who suffered from a particular degenerative illness.  His NIW was approved by the Texas Service Center.

  1. Marine Engineer from India

Our firm assisted an Indian national who held an MS in Ocean Engineering and and was employed with a small US company as a marine engineer.  Our client had no papers, patents, or citations.  We were able to show that the work he had performed in his field provided a major benefit to the marine industry and USCIS agreed with our position.  His NIW was approved by the Nebraska Service Center.

  1. Math Teacher from Ghana

Our firms assisted a Ghana national who earned a master’s degree in teaching from a US University.  Although he had no papers or publications, he was able to design a teaching tool that helped his students understand new math concepts.  We were able to show that his learning tool was substantially better than others available and USCIS agreed.  His NIW was approved by the Texas Service Center.

  1. Leadership Consultant from Grenada

Our firm assisted a Grenada national who held an operational management PhD from a US university.  She had a couple published papers but no citations.  We were able to show that her work in professional conferences and book sales were sufficient to establish her eligibility for this classification.  USCIS agreed with our position and her NIW was approved by the Nebraska Service Center.

  1. Industrial Engineer from Cameroon

Our firm assisted a Cameroon national who worked for a large US hospital where she sought to create and implement new techniques and processes to increase patient access to medical care in a cost effective manner.  Her NIW was approved by the Texas Service Center.

  1. Design Engineer from Mexico

Our firm assisted a Mexican national who worked for a regional manufacturing company in the US.  Although he did not have any papers or citations, he was credited with inventing a US patent that had some useful applications.  His NIW was approved by the Texas Service Center.

If you are looking to apply for a green card through the NIW program and are worried about your chances due to low or no citations, send us a copy of your resume and we’ll see if we can help.  Contact our office to discuss your options.

E2 Visa to Green Card

by

E2 Visa to Green Card

If you do not have family green card options or want to make a supersized EB5 investment, there are two primary ways to obtain a green card as an E2 visa holder.

1. Self sponsored green card option

In an effort to encourage foreign nationals to immigrate to the United States, establish or purchase a business and employ US persons, USCIS has established a new set of regulations specifically for foreign entrepreneurs.  This new regulations allow entrepreneurs to obtain permanent residency through the  EB2 NIW category.  This blog post will cover using the NIW to obtain a green card by establishing a US business and hiring US workers.

The National Interest Waiver allows a foreign national to apply for permanent residency through the EB2 category without having a US employer or a job offer.  This means that there is no requirement to undergo PERM labor certification and petitions can be approved in as little as 3 months provided that the entrepreneur’s immigration is in the national interest.

The entrepreneur can show his immigration is in the national interest if he can establish the following three points.

1. The NIW entrepreneur must seek employment in an area that has substantial intrinsic merit.  An example would be a structural engineer working on highway bridges.
2. The NIW entrepreneur must demonstrate that the proposed benefit to be provided will be national in scope.   For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.
3. The NIW entrepreneur must demonstrate that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.  The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

The USCIS is finally recognizing that immigrants are vitally important to the success of the US economy and are providing additional avenues to permanent residence for them.  If you are considering starting, purchasing or expanding a US business, the NIW may be the right choice for you.

2. Employer sponsored green card option (EB2/EB3)

The EB2 employment based green card is for individuals who are members of the professions with advanced degrees (any degree above a baccalaureate degree or a baccalaureate degree and at least 5 years progressive experience in the professions) or who have exceptional ability in the sciences, arts, or business who will substantially benefit the United States.  The combination of a baccalaureate degree with 5 years experience in the professions is deemed equivalent to a Master’s degree. If a doctoral degree is required for the particular profession, the alien must possess the doctoral degree.

EB3 employment based green card is for professionals who hold a US baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree.

The EB3 employment based green card is also for skilled workers and other workers who are not seasonal or temporary and require at least two years of experience or training as well as other workers are those who are capable of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the US.

In order to obtain permanent residency through the EB2 or EB3 category, the applicant must have an employer willing to sponsor him or her through PERM Labor Certification. The applicant does not have to be employed when labor certification/PERM is filed. A job offer is sufficient. Labor certification/PERM is the process whereby, the US government determines whether qualified US workers can fill the open position. Once the labor certification is approved, the employer may sponsor the applicant for permanent residency.

The EB2/EB3 process is as follows:

  • The employer performs the PERM labor certification process;
  • The employer sponsors the employee for a green card; and then
  • The employee adjust his or her status to permanent resident.

We have successfully helped thousands of clients obtain green cards.  Feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com.  We look forward to helping you and your family obtain green cards like we have for thousands of other clients.

NIW Requirements

by

NIW Requirements

The bare minimum qualification for the NIW standard is that the foreign national is a member of the professions holding an advanced degree, defined as a bachelor’s degree with five years of progressive experience or a Master’s degree or higher OR has exceptional ability in the sciences, arts or business.  Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered.”  The foreign national can prove this by showing they meet at least three of the following criteria:

  • 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.

Foreign nationals seeking a national interest waiver must also demonstrate that waiving the labor certification process be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability and whose employment in the United States would greatly benefit the nation. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).

In 1998 in the case of New York State Dept of Transportation (NYSDOT) established specific criteria for NIW petitions but this standard was recently modified to make petitions by job creators easier.  In Re Dhanasar (2016) now directs USCIS to grant a national interest waiver if the foreign national demonstrates by a preponderance of the evidence: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The applicant’s spouse and minor children may obtained derivative green cards based on the principle applicant’s approval and all beneficiaries who apply while in the United States may obtain temporary work authorization (EAD) and permission to travel (Advance Parole).

We have successfully helped hundreds of clients obtain NIW green cards. We’re looking forward to helping you and your family obtain green cards as well.  Feel free to call us at 305-515-0613 or email us at info@messersmithlaw.com. For your reference, here are some samples of our approved petitions.

Athlete Visa and Athlete Green Card Options

by

For foreign nationals who wish to come to the United States to work or perform as an athlete in sports like football, basketball, hockey, MMA, tennis, golf or in other competitions, there are several different visa and green card options to be found.  Typically, the most difficult part of the process is finding sponsorship but, fortunately for you, I can tell you several ways to get around that issue to perform in the US legally.

Athlete Visa Options

Option 1 – The B1 Visa.  The B1 visa, also known as a business visa, can be used by amateur athletes “competing in an athletic event for which they will receive no payment, other than incidental expenses” and by professional athletes “who receive no salary or payment other than prize money.”  This is clearly not the best option for an athlete who wishes to remain in the US for a longer term as this visa is limited to a six month duration and typically only granted for the exact sporting event period which can be just a couple weeks.  Also, payment is limited to prize money or incidentals.  However, it does not require sponsorship and you do not have to file a petition to USCIS for approval.  The application for a visa can be made at the Embassy and the process is very quick though not always simple to get approved.

Option 2 – The H2B Visa.  The H2B is a seasonal worker visa.  It can be used by athletes to perform in any sport that is seasonal, such as basketball or hockey.  However, for sports that are played year round, this visa type will not be an option.  The H2B visa required a US employer to sponsor the athlete and even more than that, the employer is required test the market for potential employees, run advertisements and promise to pay the “prevailing wage” for the job.  Then the employer must file applications with both the US Department of Labor and USCIS and get approvals from both before a visa application can be made at the Embassy.  Another benefit is that the H2B visa holder can bring his or her spouse or children along with an H4 visa.  The process is slower and cumbersome and you must stay aware of the H2B visa cap which mandates that only 66,000 H2B visas be issued each fiscal year.

Option 3 – The O1 Visa.  The O1 visa is limited to foreign nationals with “extraordinary ability.”  This basically means that this category is reserved for accomplished professional athletes.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  Having a sports agent as a sponsor for your O1 visa is ideal for golf, tennis or other individual sports players that are going to play at multiple different sports events or tournaments.  Unlike the H2B visa, there is no wage requirement and there are no required tests of the labor market.  The employer or agent will file a petition with USCIS and once that is approved, an application for a visa can be made at the Embassy.  A big benefit of this visa type is the athlete can bring a spouse and children along with an O3 visa and you can bring your assistants (multiple) with an O2 visa!

Option 4 – The P1 Visa.  The P1 visa is the only visa type that is specifically designed for athletes.  The athlete does not need to demonstrate extraordinary ability and there is no distinction between amateurs or professionals or individual or groups.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  There is no prevailing wage requirement and no test of the labor market is required.  However, the athlete must be “internationally recognized” and is used to compete at a specific athletic competition.  If you are only competing for prize money, the B1 visa is likely the better option and if you want to remain in the US for a longer period of time then you are likely better off with the H2B visa or O1 visa.

Athlete Green Card Options

Option 1 – PERM Labor Certification + EB3 Green Card.  The PERM labor certification requires a US employer to promise to pay the athlete the prevailing wage and perform a test of the US labor market to see if any minimally qualified US workers are willing and able to take the position, if offered to them.  If no US workers can be located then the green card application can proceed.  The PERM process + the green card process typically takes a couple years if there are no complications or no visa availability issues as listed in the visa bulletin.

Option 2 – EB1 Green Card.  The EB1 requirements mirror the requirements of the O1 visa.  The athlete must be a professional and be significant accomplishments in the sport as to show they are extraordinary.  However, unlike the O1 visa which requires sponsorship by a US employer or agent, the EB1 category has no such requirement.  That means that any foreign athlete can self sponsor and petition for a green card based on their own merits and does not have to rely on anyone else.  When the green card is approved, they are required to continue in their sport but not with any particular employer or agent.  This category is very quick and we have many EB1 cases approved in less than 1 week.

If you would like to explore your athlete visa or athlete green card options, you can contact our office by phone at 305-515-0613, by email at info@messersmithlaw.com or through this contact form.  Our firm has handled thousands of immigration cases and we can evaluate your case to determine the best path for you.

New NIW Petition After a Recent Denial

by

I’m considering to hire a lawyer for green card application. I applied green card under the NIW category before, however was rejected a year ago. I’m currently under H1b visa, my position will end in a month. I havn’t found another job yet. I attatched my CV here and would like to know if my case stands a chance. Thanks!

Deciding when to file an NIW petition is very important because any denials will follow you when you make a new application. On each application, you must disclose previous denials and the adjudications officer will pull your old file to see why it was denied and you the reasons for the last denial against you. At this point, I would recommend filing a new NIW only if you are able to overcome the reason why the last application was denied. We have handled many second filings with success but we will have to carefully review your accomplishments and the previous denial decision.

Physician J1 Waiver Job While Applicant is Outside of the US

by

I am a physician intraining Board certified from the US.

I will be finishing my training in New York city, and will be living in Canada for family reasons.

My 2 years home residency are in my country of last permanent residency which is Lebanon and not Canada.

Can I apply for a J1 waiver job through your office despite the fact that my J1 status expired and I didnt fullfill my 2 years home residency? and I am living in Canada and not the USA? or the only way to apply for a J1 waiver is if the J1 visa is still valid and I am still physically present in the USA and still didnt finish my training in the US??

Knowing that I finished my internal medicine training and am already Board certified.

Thank you

You do not need to be present in the US to apply for a J1 waiver. As long as you obtain a full time job offer to work in an underserved (HPSA/MUA) area, we can help you. Once the waiver is approved, you will need to enter on an H1B visa to begin work for the following three years.

Physician NIW – HPSA/MUA Employment

by

Hello, I would like to know how long after signing a contract you can file the NIW application. I am finishing my 3 year J1 waiver, and will transfer jobs to another MUA/HPSA location, but I hear you couldn’t file before 6 months of the contract date. Is that period related to the original 3y contract for the waiver or the second one?

Also, can I start working with you on the application before I secure the contract?

Filing the NIW can begin before securing the employment contract but you will not be able to gain State support until you do so. State support of the waiver is mandatory before you can secure the waiver. Filing deadline with the State varies from state to state. We can start on your application now and ensure that your file is properly prepared when the application window opens.

NIW Minimum Requirements

by

I’m considering filing a green card through the NIW. What are the minimum requirements to apply for an NIW? To apply for an NIW, do I have to be both an Advanced Degree Professional and Alien of Exceptional Ability?

The national interest waiver is within the EB2 category and must meet the minimum requirements of EB2 which is evidence of an advanced degree or exceptional ability.

NIW Recommendation Letter

by

I’ve attached my CV for you to review to see if I’m qualified for NIW. I have one issue.  I don’t really get along with my boss. If my boss is not willing to write a strong letter of recommendation for me, can I still have a successful NIW?

While it is certainly helpful to obtain a letter from your boss certifying that your work is in the national interest and that you are playing an important role, it is not mandatory. In fact, under the NIW category, a job or job offer is not even a requirement. Evidence of your accomplishments in the field and other letters from your peers can be used instead.