Extraordinary Categories for Extraordinary Individuals: Is an EB-2 National Interest Waiver right for me?
Are you an advanced degree (or equivalent) holder or a person of exceptional ability in the sciences, arts, or business looking to work permanently in the United States? If your work is in the interest of the United States, a National Interest Waiver (NIW) can offer a path to a green card and may be the right path for you.
Let’s Start at the Beginning: Defining EB-2s and Permanent Employment Certification
Before we begin discussing National Interest Waivers, let’s define EB-2s and Permanent Employment Certification.
What is an EB-2?
An EB-2 is an employment-based, second preference immigrant category open to certain advanced degree (or equivalent) holders and certain individuals of exceptional ability in the arts, sciences, or business.
Normally, to qualify for an EB-2, you must prove that you are either:
A member of the professions holding an advanced degree (or its equivalent), or
An individual of exceptional ability in the sciences, arts, or business.
Significantly, you must also have a valid offer of fulltime employment in the United States, and your prospective employer must provide an approved Permanent Employment Certification from the Department of Labor (DOL). This is not an ideal option for most employers.
What is a Permanent Employment Certification?
Often, before hiring a permanent foreign worker to work in the United States, an American employer must prove that there are no minimally qualified U.S. workers (including Legal Permanent Residents and asylees) available for the position. They must certify this with a Permanent Employment Certification obtained from the DOL, which gives them permission to file for your green card.
More precisely, a Permanent Employment Certification certifies to the DOL and USCIS that:
There are not sufficient U.S. workers who are willing, available, and qualified to accept the intended employment in the area of intended employment, and
Employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers
Obtaining a Permanent Employment Certification requires an employer to jump through hoops to test the current job market. So, if a qualified applicant applies, your application cannot proceed. This has now cost you, and your employer, time and money.
Were this blog to end right here, you might shut your laptop or scroll away feeling defeated. Don’t stop reading yet! You have another option – if your work is in the interest of the United States, a National Interest Waiver (NIW) may be the right path for you.
What is a National Interest Waiver (NIW)?
A National Interest Waiver, or NIW, is a way to obtain an EB-2 immigrant visa designation without meeting the two normal EB-2 requirements of a job offer and an approved Permanent Employment Certification.
If your work is in the national interest of the United States, you can apply for EB-2 classification with these requirements waived by submitting a National Interest Waiver (NIW) petition.
What are the advantages of an I-140 EB-2 NIW designation?
Path to Green Card
Ability to self-petition (no employer sponsor required)
No specific job offer required
Approval based on substance of petition, rather than whether you meet specific occupational classifications or have the correct proposed job title
USCIS must focus on “the specific endeavor that the foreign national proposes to undertake”
Less strict criteria than EB-1A, Alien of Extraordinary Ability
Can be used to extend H-1B beyond six-year limit under AC21
No DOL certification required
Worthy of a Waiver:
The Three-Pronged Approach to Determining NIW Eligibility
To prove eligibility for an NIW, you must first establish that you are eligible for the underlying EB-2 visa classification as either:
A member of the professions holding an advanced degree (or its equivalent), or
An individual of exceptional ability in the sciences, arts, or business.
To qualify for an EB-2 NIW, you must show that your endeavor in the United States would substantially benefit the national economy, cultural or educational interests, or the future welfare of the United States, and that your work is in the national interest.
You may prove that the waiver of the job offer requirement, and thus, the DOL certification requirement, is in the “national interest” by providing evidence that you meet the following three prongs:
Your proposed endeavor has substantial merit and national importance,
You are well-positioned to advance your endeavor, and
On balance, it would be beneficial to the United States to waive the job offer and thus the DOL certification requirements.
To establish that you meet each prong, you must provide extensive documentation and a clear, compelling narrative that outlines your occupation, what type of work you propose to undertake within that occupation, how specific projects will help you achieve certain goals, and how those goals will favorably impact the United States.
Prong 1: The Proposed Endeavor has both Substantial Merit and National Importance
USCIS describes the term “endeavor” as a specific, detailed explanation of both your occupation and what you plan to do in the United States within that occupation. This includes key details like:
What the occupation normally involves, and what type of work you propose to undertake within that occupation
How your individual endeavor may benefit a field, region, or the public at large
If you will further the endeavor through specific duties with an employer or another way, and how
In addition to a straightforward and clear explanation of your proposed endeavor, to meet prong one, you must also provide documentary evidence that establishes your proposed endeavor’s national importance.
Prong 2: The Person is Well Positioned to Advance the Proposed Endeavor
The second prong considers how well-positioned you are to continue your work in the United States and advance your proposed endeavor. This is where your achievements and ambitions come into play. It is not enough to have garnered success in the past and to propose vague ideas for the future.
Instead, to meet Prong 2, you must show that you are actively focused on your proposed endeavor and can pursue and advance it in the United States. To show that you are well-positioned to advance the proposed endeavor, a USCIS officer will consider factors such as:
Your education, knowledge, skills, and record of success in similar or related endeavors
Evidence that you have developed a detailed plan or proposal, or have significantly contributed to the development of a plan or proposal for future activities related to your endeavor
Any progress you have made towards achieving your proposed endeavor
Interest or support for your proposed endeavor garnered by potential clients, customers, users, investors, or other relevant entities or individuals
Prong 3: On Balance, it Would be Beneficial to the United States to Waive the Job Offer and thus the DOL Certification Requirements
The final prong requires you prove that, taken together, the benefits of waiving the sponsorship and DOL certification requirements, so that you can pursue your proposed endeavor in the United States, outweigh any of the benefits of the normal EB-2 requirements.
To establish eligibility for Prong 3, you may submit evidence relating to one or more of the factors below:
Whether, in light of your qualifications or proposed endeavor, it would be impractical to seek a DOL certification
The benefit to the United States from your prospective contributions, regardless of the availability of other U.S. workers
If the national interest in your contributions is sufficiently urgent to forego the DOL certification process, so that you may begin your work more quickly (e.g. your work will advance a time-sensitive public health benefit)
Whether, if you are a person with unique knowledge or skills exceeding the standard minimum requirements for your occupation, the DOL certification process would prevent an employer from hiring someone whose skills cannot be appropriately represented in a DOL certification
In addition, officers may consider:
Whether your endeavor has the potential to generate considerable economic impact, and
Whether your endeavor may lead to potential job creation.
Frequently Asked Questions
What is the NIW application process like?
Once you have, with the help of an experienced law firm like May Law Group, determined that you meet the eligibility requirements for the EB-2 NIW visa category, the NIW application process consists of a few main steps: gathering documentation and preparing the immigrant petition.
Examples of documentation include items such as expert opinion letters, evidence of your awards, patents, publications, etc., and evidence showing that your endeavor is in the national interest. Another important component is the cover letter, in which you lay out exactly how you qualify for the waiver.
Preparing the immigrant petition includes completing the correct USCIS application and payment forms and submitting them to USCIS.
Can I apply for an EB-2 NIW and a green card at the same time?
In many circumstances, if you are already in the United States in valid status and a visa number is available to you, you may apply for an EB-2 NIW visa designation and a green card at the same time by concurrently filing an Adjustment of Status application. If the priority date for your country of birth is not current, meaning a visa number is not available, you have the option of either 1) maintaining your underlying status until it is current or 2) processing the green card application from abroad.
Can I apply for an NIW if my employer has already applied to DOL for my Permanent Employment Certification?
If your prospective employer has already applied or could apply for labor certification on your behalf, you may still apply for a National Interest Waiver, and you may still be approved for the waiver if it is determined that the national interest of your work outweighs the benefits of undertaking the DOL certification process.
NIWs are great for the right candidate. However, no matter how important or impactful your work, if you cannot explain it, it will be difficult to convince a USCIS officer that you deserve an EB-2 immigrant visa designation through an NIW. That’s why it is so important to work with an experienced immigration attorney with a proven track record of success, who understands how to present your proposed endeavor in the best light, how to bring technical terms to life, and how to guide USCIS officers to recognize your merit.
May Law Group has successfully argued the national interest of many endeavors by extraordinary individuals from a wide range of careers, including market research specialists developing key technology to improve communication abilities both commercially and within the Department of Defense, plastic and reconstructive surgeons with advance knowledge to improve the treatment of cleft lips and palates, liver transplantation surgeons helping to address the critical shortage of healthy donor livers, behavioral cardiologists researching and discovering novel treatments to better treat cardiology patients with co-morbid psychiatric health disorders, biologists researching molecular mechanisms by which cancer can be cured or prevented, veterinarians studying the prevalence of gastrointestinal parasites in small animals, and many others. May Law Group can help you too. To learn more about our experience or to discuss what employment-based visa category may be right for you, complete our online contact form today, or call us at 412-291-4400 to discuss your immigration matter.