National Interest Waiver

E2 Visa to Green Card

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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

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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.

New NIW Petition After a Recent Denial

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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

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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

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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

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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

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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.

Principle Green Card Applicant to File Without Dependents

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I’m ready to have you handle my green card case through both EB1 and NIW. I do not want to file the green cards petition for my wife and daughters at this time due to our financial situation. Is it Ok if I have my case approved first then file for them? Will they still be able to benefit from my approval? Thanks.

While it is possible under immigration law to do what you are requesting, it can be dangerous if not timed perfectly. I understand that an additional $3,030 in filing fees is a lot of money but I would recommend you either 1. File your EB1 and NIW first without any green card application or 2. Borrowing the money or wait until you’ve saved sufficient funds and then file for everyone simultaneously.

H1B Visa Application while I-140 NIW is Pending

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I’m currently on OPT and I just got a job offer. The company is willing to sponsor me for an H1B visa. I have a pending I-140 through NIW. Can I apply for an H1B visa while my I-140 is pending.

Certainly. An H1B Visa allows the applicant to have both immigrant and nonimmigrant intent so you may apply and obtain an H1B visa while you have a green card application pending.

J1 Waiver for a J2 Holder

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I have J1 visa and my spouse J2 visa. Our visa expires on September 6, 2012 and I am leaving with my kids back. But my husband needs to stay here in order to improve his English and get some upgrade in his education. But he has as I do, two year rule restriction. Can you help us to waive this 2-year rule? If I am not intending to stay here and planning to leave in April, is it possible that the process goes without me. Or is it necessary, that I stay here till the decision is made.

Canceling the labor certification is not required. You can file simultaneous EB1 and NIW petitions and We can help you with a waiver. You do not need to stay here until the decision to be made but it’s not possible to process the case without you.