What is an EB2 National Interest Waiver?

 

Here at USCES, we deal a lot with expert opinion letters and academic evaluations for our clients applying for an EB2 NIW.

We wanted to go over what it is, the requirements, and how to get started.

Overview

The United States Citizenship and Immigration Services recognizes several categories of education, specialization, and achievement that may be applicable to individuals seeking an employment-based visa to work in the United States. These visas are generally awarded based on the need or desirability of the applicants education and skills and are ranked in descending order of approval preference from EB1 through EB5. 

In this article we will be discussing the Employment-Based, Second Preference (EB2) Visa and the National Interest Waiver (NIW) as it applies to the completion of the 1-140. We will also review what to expect during the application process, timelines for receipt and approval, and how to proceed if your application is denied. 

EB2 Visa and the National Interest Waiver

Individuals are eligible for an EB2 visa if they hold an advanced degree or can demonstrate exceptional ability in their professional field. The criteria for holding an advanced degree includes documentation of a U.S. Advanced Degree or a foreign equivalent degree, or documentation of a U.S. baccalaureate degree or a foreign equivalent degree and documentation from employers to demonstrate 5 or more years of progressive post-degree experience in the professional specialty. 

To qualify as a person with exceptional ability, at least 3 of the following criteria must be met (uscis.gov):

  • 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 (i.e. expert opinion letter, evidence of national/international award, evidence that applicant has judged the work of others)

In addition to gathering and providing this information, one of the more difficult aspects of the EB2 application process is that the I-140 form must be submitted on behalf of the applicant by their employer.  The employer is required to have a labor certification approved by the U.S. Department of Labor and a documented job offer to the applicant prior to the submission of the I-140. However, it is possible for both the job offer and labor certification requirement to be waived, and for the individual applicant to apply on their own behalf, by utilizing the National Interest Waiver (NIW).

The requirements to qualify for the NIW have not been outlined in detail through the legislative process but the criteria, via the Office of Citizenship and Immigration Services state that :

  • The proposed endeavor has both substantial merit and national importance
  • The applicant is well positioned to advance the proposed endeavor
  • It would be beneficial to the United States to waive the requirements of a job offer and labor certification requirement.

In other words, to qualify for the National Interest Waiver the applicant must demonstrate their availability and contribution to the US workforce is more beneficial(culturally, academically, or economically) than it would be to require the labor certification and job offer. Evidence related to the NIW may include letters of recommendation/reference by experts, documented awards, publications, and evidence of significant contributions to their field of expertise. 

How to Apply for an EB2 NIW Visa

It’s important to emphasize that, if possible, the applicant should seek the services of an experienced immigration attorney to assist them in the completion of the I-140, especially if they are seeking the National Interest Waiver. Remember, the requirements to qualify for the NIW are not outlined specifically, and an experienced attorney should be able to assist the applicant in gathering the relevant documentation and presenting a strong case for approval.

Both the I-140 and detailed instructions for completion are available at uscis.gov/i-140, but the general steps for completing the petition process are as follows:

  1. Complete the I-140, Petition for a Nonimmigrant Worker. 
  2. Submit the filing fee ($700).
  3. Gather and submit evidence of your professional status 
  4. Sign and file the I-140

Again, it bears repeating that seeking an immigration attorney may be a good idea at this point. An experienced attorney can ensure that appropriate and acceptable evidence is gathered. An attorney also has experience  presenting professional information in a manner which emphasizes the applicants extraordinary abilities and meeting the requirements for the National Interest Waiver. Finally, an experienced immigration attorney is likely to be much more familiar with efficiently navigating the bureaucratic process and avoiding delays. 

Here are a few tips to ensure that the I-140 is accepted and not rejected for lack of evidence:

  • Print in black ink, include fee at the time of filing the form, and ensure that all questions are answered
  • Consider submitting the I-140 electronically. In this case, supporting documentation needs to be sent separately to the address specified in the e-filing instructions.
  • Organize all evidence and specify which criteria this documentation applies to
  • Ensure that all evidence is submitted in the correct format. If a photocopy or fax is allowed, be sure that the copy is clear and legible. 
  • If evidence is written in a foreign language, include an English translation with the original document.

What to Expect Following Submission of the I-140

One to two weeks following submission of the I-140, the applicant will be sent a receipt for their petition.

It is important to know that processing time for the application will likely be 4-6 months. During that time the applicant may be required to submit additional evidence, participate in an interview, undergo criminal background checks, and submit to a biometric services appointment (where the applicant may be asked to provide fingerprints, photographs, signature, or DNA). If the applicant is not yet in the United States, the interview and biometric services appointment are usually able to be completed at a U.S. Embassy or Consulate.

Requests for additional evidence may come in one of two forms. The most straight forward communication from USCIS is the Request for Additional Evidence (RFE). USCIS may also issue a Notice of Intent to Deny (NOID). The primary difference between these notices is that in the case of an RFE there is still a possibility that a petition will be approved without submission of the additional requested evidence. In the case of an NOID, the petition will be denied if the additional evidence is not provided. In both cases, the applicant has 84 days to respond to these notices.

Finally, after approximately 4-6 months, the applicant will receive a notice of approval or denial of their petition.

Appealing Rejection

If the applicant’s visa petition is denied, they have the option to appeal this decision. Generally, the applicant has 30 days to appeal from the date the decision was made. The notice of denial will include information regarding the process to appeal the decision.

There are two steps to the appeal process. First, there is the initial field review during which the office that made the initial decision reviews the appeal to determine if the information provided by the applicant is sufficient to alter the results. If the initial field office determines that there is not sufficient evidence to alter its decision, the appeal will be escalated to the Administrate Appeals Office (AAO) for evaluation. The AAO attempts to resolve appeals within 180 days, however these appeals often take longer based on the need to gather additional evidence or the complexity of the individual case.

Conclusion

Applying for an Employment based visa is a complex process that requires patience, organization, financial resources, and expertise. It may benefit the applicant to seek the services of an experienced immigration attorney to assist in gathering evidence and completing the application process. In any case, there are numerous resources, including the United States Citizenship and Immigration Services (USCIS.GOV), available to assist the applicant in achieving a favorable outcome.