National Interest Waiver

Entrepreneur NIW: The National Interest Waiver for Entrepreneurs

by

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 utilize the H1B visa to establish and run a business in the US temporarily and obtain permanent residency through the EB2 green card category as well as 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 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.

National Interest Waiver Approvals – Part II

by

National Interest Waiver – Part II

In continuation of our ongoing segment of national interest waiver approvals, we’re going to discuss another previously approved case.  In this matter, the applicant was an Indian national but unlike today, the EB2 category was current for Indian nationals, and we could file an NIW application and there was no extra waiting period beyond normal USCIS processing times.

National Interest Waiver Requirements

  1. That the alien seeks employment in an area of substantial intrinsic merit;
  2. That the proposed benefit will be national in scope; and
  3. That the national interest would be adversely affected if a labor certification would be required for the alien.

National Interest Waiver Approved Case Part II

Degree: MS in Biochemistry

Position: Senior Laboratory Technician (This position was amended prior to filing)

Field of Expertise: Stem Cell Derivation

Publications: 1 (4th author)

Citations: 8 including self citations

Abstracts: 11

Recommendation Letters: 3

The applicant in this case was an Indian national.  The NIW application was approved although a difficult request for additional evidence was issued that held up the approval for an additional two months.  However, the applicant still obtained his residency approximately 14 months year after filing.  Current NIW processing times are much faster and since the second half of 2009, we are regularly seeing approvals in less than 3 months.

By looking at the applicant’s job title at the time we took his case (tech), it would seem like a national interest waiver was a long shot.  His publication record certainly did not help.  However, we were able to identify some novel techniques the applicant developed as a tech and were able to convince his University employer to move him to a different position that is more associated with research prior to filing.  This was certainly a difficult case but a case that we were very proud to get approved because the obvious accomplishments were just not there.  If we took this case today we would consider filing a concurrent EB1 filing since the EB2 category is backlogged.

National Interest Waiver Approvals – Part I

by

National Interest Waiver – Part I

I’m going to introduce a new segment to my blog readers.  Many current and potential clients contact me or my office to discuss whether or not they can qualify for certain applications like the national interest waiver.  I wrote one previous entry describing the typical qualifications for our NIW clients but I would like to start a periodic series describing particular NIW cases that we have successfully handled in the past.

National Interest Waiver Requirements

  1. That the alien seeks employment in an area of substantial intrinsic merit;
  2. That the proposed benefit will be national in scope; and
  3. That the national interest would be adversely affected if a labor certification would be required for the alien.

National Interest Waiver Approved Case Part I

Degree: PhD in Physics

Position: Research Associate

Field of Expertise: Materials Science

Publications: 14

Citations: 11 including self citations

Conferences: 21

Recommendation Letters: 4

The applicant in this case was a South Korea national.  It was approved without a request for additional evidence and because the visa numbers were current for the EB2 category, the applicant obtained her residency approximately 1 year after filing.  Current NIW processing times are much faster and since the second half of 2009, we are regularly seeing approvals in less than 3 months.

This applicant surpassed the minimum requirements for an NIW application.  Most of our clients have 4 publications or less and are employed as a post doc at a University.  However, the applicant had a very poor publication to citation ratio.  This could lead the adjudicating officer to believe that her work was not well regarded and of poor quality.  In a sense this was true but we were able to overcome this issue by highlighting her other accomplishments and through her recommendation letters.

Recent Success in the National Interest Waiver Category (NIW)

by

While our firm has always had great success in getting green card applications approved through the national interest waiver category, we have recently have enjoyed noteworthy success in getting them approved quickly.  In the past, we normally saw cases take roughly 10-14 months for NIWs to be approved and green cards to be issued.  Currently, both the Texas Service Center and Nebraska Service Center are showing that processing times are roughly 12 months for NIW Form I-140.  However, in several of our most recent NIW cases, we are receiving NIW approvals, including issuance of green cards, in 4 months or less.  One case in particular was approved in less than 3 weeks!  Bear in mind that premium processing is not available for NIWs.  We encountered the rate situation where both Form I-140 and Form I-485 were approved before the applicants even attended their biometrics appointment!  The green cards were mailed out shortly after the biometrics were taken.  It took a lot of hard work on our part to get these cases approved so quickly and we are working to duplicate these results on behalf of the rest of our clients.

Redacted copies of the latest approval notices are below.

NIW Green Cards Approved in Three Weeks!

Green Card Options for PhD Holders

by

In virtually all types of green card application, the foreign national seeking permanent residence must have a sponsor.  Typically the sponsor is the applicant’s employer or there is some type of familial relationship.  For certain PhD holders, or even PhD students, the foreign national can act as both the sponsor and the applicant.

The two paths to permanent residence that allow self-sponsorship are the EB-1 Alien of Extraordinary Ability category and the EB-2 National Interest Waiver (NIW) category.  While both categories have stringent requirements, the Eb-1 category is much more restrictive and requires the applicant to prove that he or she is one of the top individuals in his or her area of expertise.  Currently, there is no benefit to having an EB-1 application approved over an NIW application except for nationals of PR China and India.  Unless bragging rights are important, most applicants would be better off applying through the NIW category because approvals are easier.

There are three keys to a successful EB-1 or NIW application.

1.  Strong credentials.  In our experience, a successful EB-1 applicant should have a PhD, 10+ journal publications, 40+ journal citations, 5+ conference proceedings and previous service for a journal reviewing manuscripts or membership in highly regarded professional organizations.  These are not absolute minimums as we have obtained EB-1 approvals for clients with significantly weaker credentials but this should serve as a guide for potential applicants.  In contrast to the EB-1 requirements, an NIW applicant need only a PhD with 3+ journal publications and 5+ journal citations.

2.  Strong Recommendation Letters.  Both EB-1 and NIW applicants should obtain at least 4 recommendation letters from various sources.  These letters must be worded correctly or the USCIS officer reviewing the application will use the letters against the applicant to deny the case.

3.  Persuasive Cover Letter.  It is absolutely imperative to guide the USCIS officer through the application to educate them on the applicant’s accomplishments and why those accomplishments are superior to others.  The cover letter must cite the applicable statutes as well as federal court cases to explain why the applicant meets the legal burden of proof.  The burden of proof rests with the applicant and he or she must demonstrate eligibility for the category.

It normally takes about 12-18 months to get a decision on the EB-1 or NIW application.  If the applicant fails to demonstrate eligibility and the case is denied, it can be appealed.  Appeals generally take 12 months and most denials are sustained.  The applicant may also choose to refile but in each application, the applicant must disclose previous filings.  Without substantial new accomplishments, the case is likely to be denied again.  Therefore, it is vital to present the best possible case to USCIS in the first application.