Q: What is USCIS?
A: The USCIS, also known as the United States Citizenship and Immigration Services, is a government office charged with handling immigration, citizenship, and residency among people from foreign countries who wish to live in the United States. USCIS deals mainly with employment-based immigration cases, family-based immigration cases, etc.
Q: What is NIW National Interest Waiver?
A: A National Interest Waiver (NIW) petition is part of the employment-based, second-preference immigration category. There are two types. First, the employer must provide permanent job position, file labor certification and submit I-140 petition. Secondly, the applicants can apply for NIW. Based on the consideration of the national interests of the United States, the United States Government gives priority to foreign talents who contribute to the interests of the United States, thus enabling qualified foreign applicants to obtain green cards.
Q: What are the minimum requirements for an NIW?
A: A National Interest Waiver (NIW) petition is part of the employment-based, second-preference immigration category. The beneficiary must obtain” Advanced Degree” or have “Exceptional Ability.” Please note that meeting the minimum standards does not mean that the application can be approved.
Q: What is an “Advanced Degree Professional”?
A: The beneficiary either has an advanced degree (M.A., M.S., M.E., M.D., or Ph.D.) or its foreign equivalent, and is working in an area that requires at least a bachelor’s degree or is traditionally regarded as a profession requiring a high level of postsecondary education, such as a lawyer, doctor, architect, engineer, or professor. In some cases, a bachelor’s degree plus five years or progressive experience in a professional occupation may satisfy the requirement of an “advanced degree.”
Q: What is an “Exceptional Ability”?
A: Aliens must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
EB-2 NIW applicants should meet at least three of the following requirements:
1)Degree relating to area of exceptional ability;
2)Letter from current or former employer showing at least 10 years of experience;
3)License to practice profession;
4)Person has commanded a salary or remuneration demonstrating exceptional ability;
5)Membership in a professional association;
6)Recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Q: In order to apply for NIW, must the applicant satisfy “Advanced Degree” and “Exceptional Ability”?
A: No. The applicant should satisfy one of them. Many applicants mistakenly believe that these two conditions need to be met simultaneously when applying for NIW. In fact, applicants only need to prove that they have a “Advanced Degree” or “Exceptional Ability”. It is not necessary to prove that you satisfy both conditions at the same time.
Q: What documents do you need to prepare to apply for NIW?
A: Applicants applying for NIW need to submit I-140 form, NIW Petitioner Letter and ETA-750B form to USCIS, as well as relevant materials that can prove that the applicant has a “Advanced Degree” or “Exceptional Ability”.
Q: What is the NIW standard under current U.S. immigration law?
A: The Immigration Act of 1990 allows the labor certification requirement to be waived for “Advanced Degree Professionals” or persons of “Exceptional Ability” whose work would substantially benefit the national interests of the U.S. Applicants who apply for NIW can file NIW themselves. For more information about the law, please click here 8U.S.C. 1153 (b) (i)
Q: How does USCIS determine its decisions regarding NIW cases?
A: The following three factors are considered in determining whether an alien will substantially benefit the national interests of the United States:
1) that the applicant’s proposed endeavor has both substantial merit and national importance;
2) that the applicant 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 labor certification process exists to protect the jobs and job opportunities of U.S. workers having the same minimum qualifications as an alien seeking employment. The petitioner, whether the employer or the alien him- or herself, must establish that the beneficiary will serve national interests to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Q: Can you confirm the success of the NIW application?
A: There are no laws or regulations to describe the rigid criteria for applications. The applicant and the attorney are required to provide evidence to USCIS to demonstrate that the applicant is qualified for NIW. Based on our experience, the more convincing the letters of recommendation and petition letters are, the higher the success rate of applications will be.
Q: How important are personal skills and special backgrounds in the application process?
A: It is not enough to emphasize the applicant’s personal skills and special background. It is important that the applicant’s personal skills and special background bring national interests to the United States, which should outweigh the national interests of “protecting the interests of American workers”. The petitioner and the attorney should persuade that foreign applicants would bring huge national benefits to the United States.
Q: Who has the burden of proof in NIW application?
A: The applicant and his/her attorney have the burden of proof.
Q: If the applicant is an academic researcher, what is the minimum requirement of the number of publications for NIW application?
A: USCIS and Immigration & Nationality Act do not have special provisions on this. Of course, if you publish more academic articles, you will get higher chances of approval .
Q: If the applicant is a business elite, can he apply for NIW?
A: Yes, of course. I have handled many national interest talents in business, such as well-known commercial real estate executives in China. For more information, click on Successful Cases Analysis.
Q: Is it necessary to prove that there is a shortage of labor in applicant’s field of work?
A: No. Matter of New York State Dep’t of Transp. (NYSDOT) made it clear that proving a shortage of labor in the applicant’s field of work was not a factor in consideration of the national interest waiver. Moreover, Dhanasar decision issued in 2016 directly skips this issue. For NIW application, labor certification requirements is waived for the sake of the “national interest.”
Q: In addition to NIW, what other categories of Employment Based Immigration do not require a labor certification?
A: If you meet the requirements of an employment-based, first-preference petition, you would not need a labor certification. .If you meet the requirements of EB-1A you do not need employers to provide permanent jobs. For more information, please click here.
Q: Does the applicant need to live in the United States to apply for EB-2 NIW?
A: No. Whether the applicant is in the United States or not, he or she can apply for NIW. We have successfully helped many applicants get the approval of NIW.
Q: Why does NIW require letters of recommendation?
A: Applicants need to get letters of recommendation from experts or authoritative scholars in the field of work or related fields to prove the ability and achievements of applicants. The experts will prove that the applicants can bring national interests to the United States. This is subjective evidence in the application process. Recommendation letters are very important.
Q: Who can write the letters of recommendation?
A: There are many ways to get letters of recommendation.
1. experts in their field of work
Explain that the applicant has made important contributions in this field and can bring benefits to the United States.
2. Experts or companies that have used applicants’ research and work results.
3. Current or former employer.
Generally speaking, attorney suggest that applicants need at least 3-5 independent referees to write letters of recommendation. That is to say, applicants need to find referees who have not worked with the applicant but know the applicant’s achievements in this field. Such letters of recommendation from independent referees are more important than letters of recommendation from referees who know applicants.
Q: What should we pay attention to when writing recommendation letters?
A: Recommendation letters are used to recommend the applicant’s professional competence, talent and achievements in an objective and impartial manner. Another important point is that the referee needs to write about the national interests that the applicant will bring to the United States. Since the success of the application depends largely on the letters of recommendation, our attorneys will provide suggestions on the letter of recommendation according to the specific conditions of clients. If you have more questions, please send email to info@owenlawpc.com
Q: Will attorneys provide recommendation letters service?
A: Yes. According to the different specialties and needs of different clients, we will select samples of recommendation letter from our database and help the clients revise the letters. Our sample covers a wide range of professions, including business, chemistry, physics, art, medical research, engineering, sports, music, etc.
Q: Can artists or musicians apply for NIW?
A: You can apply for NIW as long as you meet the criteria of NIW. We have successfully helped many musicians, dancers, singers get the NIW approval.
Q: If the applicant has not published articles in professional journals, can the applicant apply for EB-2 NIW?
A: Of course. USCIS and Immigration & Nationality Act do not require applicants to publish articles before applying for NIW. They do not stipulate that applicants who have published works can get the approval of NIW. However, if the applicant has published articles, his/her application will have more chances of approval.
Q: If the applicant has not won an award in the professional field, can the applicant apply for NIW?
A: Of course. USCIS and Immigration & Nationality Act do not require applicants to win awards before applying for NIW. They do not stipulate that applicants who have won awards can get the approval of NIW. Similarly, if the applicant has won the relevant awards ,his/her application will have more chances of approval.
Q: The applicant wants to apply for EB-1A. Can applicants apply for NIW at the same time?
A: Yes. Applicants can apply for EB-1A I-140 and EB-2 NIW I-140 at the same time. Applicants can apply for multiple categories at the same time. This can improve the success rate of applicants, because it is difficult to predict which application will be approved by USCIS.
Q: If I have submitted an application through other immigration categories, can I apply for NIW?
A: Yes. After applying for immigration through other immigration categories, you can also apply for NIW.
Q: If I submit NIW and EB-1A at the same time, will they have adverse effects on each other?
A: No. There is no connection between these two applications and they will not affect each other.
Q: Which petition is better, EB-2 NIW, or EB-1A?
A: You can submit NIW and EB-1A at the same time. However, the two categories are different. The chances for approval of EB-1(a) are generally not high, but if your application is well prepared and persuasive, you d’ better to apply for EB-1A.
At present, for applicants born in China’s mainland, EB-1A immigrant visa is not available in two years, and EB-2 NIW immigrant visa is not available in three to four years. Therefore, our attorneys strongly suggest that the applicants submit NIW and EB-1A at the same time.
Q: If the applicant’s EB-2 PERM labor certification is pending, can the applicant apply for NIW?
A: Yes. EB-2 PERM labor certification and EB-2 NIW are independent applications. U.S. Department of Labor (DOL) handles applications for labor certification. USCIS handles NIW petitions. If EB-2 PERM labor certification is denied, the applicant’s EB-2 NIW may be approved.
Q: What is EB-2 Request for Additional Evidence(RFE)?
A: The USCIS considers that the applicant does not have sufficient evidence to prove that he or she meets the requirements of EB-2 NIW. In this case, USCIS will send RFE notice requiring the applicant to continue to submit evidence that the applicant lacks.
Q: If I have filed NIW application, when is my Priority Date?
A: The applicant’s priority date is the date USCIS receives your NIW petition and approves your NIW I-140. If NIW I-140 is not approved, the applicant has no Priority Date.
Q: The applicant is currently an F-1 student. Can he apply for NIW?
A: Yes. If the applicant meets the requirements of National Interest Talents (EB-2 NIW), he can apply for NIW.
Q: I am currently in J-1 status and subject to the two-year home country residency requirement. Can I apply for NIW?
A: Yes. You must obtain a J-1 waiver or meet the requirement of two-year home country residence before you submit I-485 or a Consular Processing.
Q: I am currently in J-1 status and subject to the two-year home country residency requirement. If I apply for an NIW and get it approved, is my J-1 home country requirement waived?
A: No, a J-1 waiver and an NIW are two different things. A J-1 waiver is an application to waive the two-year home country residency requirement. An NIW is a waiver of the job offer and labor certification requirements.
Q: If my NIW is approved, can I adjust my status?
Answer: It depends on whether an immigrant visa is available. If immigrant visa is available, you can apply for I-485 Adjustment of Status or Consular Processing. Please click on visa bulletin.