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EB-2 or EB-3 Visa

NIW is a second preference visa, or an EB-2 visa. EB-2 visas are issued to members of professions that hold an advanced degree or its equivalent or to foreign nationals who have exceptional ability. Normally, to obtain an EB-2 visa you must have a permanent job offer and an approved labor certification. But NIW allows you to waive the requirement of a labor certification and offer of employment if you can establish that your admission to become a permanent U.S. resident will be in the national interest.

Who is Eligible for a National Interest Waiver?

To be eligible for a National Interest Waiver, you must demonstrate that you’ve made an extraordinary contribution to your field. This makes the NIW a great option for advanced degree professionals, post-doctoral research fellows, scholars, researchers, and Ph.D. students. You may be residing outside or within the United States when you file your NIW petition.

What is “Exceptional Ability”?

Exceptional ability is shown by demonstrating at least three of the following:

  • Official academic record relating to the area of exceptional ability

  • Professional license or certification

  • Letters from employers stating that you have made an extraordinary contribution to your field

  • Proof of salary demonstrating your level of exceptional ability

  • Membership in professional associations

  • Recognition of your achievements or contributions to the field, such as awards or grants

What is an “Advanced Degree Professional”?

An advanced degree professional is one who has received an advanced degree or its foreign equivalent and is working in a field where at least a Bachelor’s degree is required. If you have a Bachelor’s degree and five years of experience in the field, you may also be considered an advanced degree professional.

What are the Requirements for a National Interest Waiver?

  •   Substantial Intrinsic Merit: You must show that you seek employment in an area of substantial intrinsic merit to the United States. You will need to submit documents demonstrating the importance of your proposed work in the U.S., such as a letter from your employer describing your work, published media discussing the company’s important work, or letters from experts in your field confirming the importance of your work.

  •   National Scope: The benefit from your proposed occupation must be national in scope, even if your employment is limited to a specific geographical area. Evidence to prove the national scope of your employment can include published media, copies of any agreements or contracts stating the scope and impact of your employment, letter from experts or employers station the national importance and scope of your work.

  •   National Benefit: You will also need to show that the requirement of a labor certification in your case would adversely affect the national interest. The labor certification process is in place to ensure that the working conditions and wages of U.S. employees in the same field are not adversely affected. To show that waiving the labor certification requirement would benefit the national interests of the U.S., the evidence you submit will be reviewed to determine if the national benefits that you offer outweigh the national interest of the labor certification process to a substantially greater extent.

A few factors used to show that your admission would be in the national interest include:

  • Whether your business will benefit the economy, including whether it will create jobs for U.S. workers.

  • Whether your admission will improve the wages and working conditions of workers in the U.S.

  • Whether your admission will improve the environment and usage of national resources.

  • Whether your admission would improve the national health care system.

  • Whether your admission will improve educational programs.

  • Whether your admission would assist in creating affordable housing.

  • Whether an interested U.S. government agency has requested your admission.

You will need to demonstrate that you have a past record of specific achievements that prove future benefits to our national interest. Evidence that you may submit to show the national interest benefits include published media recognizing your achievements, copies of grants or other funding received, and documents proving how your work is implemented by others.


Letters of Recommendation

Obtaining letters of recommendation from experts in your field is a major part of the National Interest Waiver petition process. Experts may include researchers who have cited or used your work, government researchers, editors of journals where your work has been published, or advisors of your research. You should include background evidence of your recommenders, including a copy of their CV. You should also describe in detail how the recommender knows you and your work, including the national significance of your work.


How is a National Interest Waiver Petition Filed and How Long Will It Take?

A National Interest Waiver petition, and the related EB-2 visa application, is filed with the U.S. Citizenship and Immigration Services (USCIS). The petition for an NIW may be filed by the applicant or can be sponsored through an employer. It normally takes about six months to a year to process a NIW petition. However, this time can vary considerably with each individual case. You are allowed to file other immigration petitions while your National Interest Waiver petition is pending.


Common Problems with a National Interest Waiver Petition

Current U.S. immigration policy and an economic downturn have made obtaining a National Interest Waiver approval more difficult than ever before. Also, the different USCIS servicing centers have different standards for deciding the approval of NIW petitions. You have the burden of proof to establish that you have the required unique and exceptional experience, skills, or knowledge for a NIW, and this can be very difficult to do.

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