The simplest way to get approved for Employment Based Second Preference Visa EB-2 is by seeking national interest waiver. By this, the labor certification will be waived for you and you will not need any employer to file an Alien Worker Petition Form I-140 on your behalf. However, to enjoy this privilege, you need to establish that you meet one of these 2 eligibility requirements which are not difficult to satisfy:
- You must either prove that you have a master’s or doctoral degree or bachelor’s degree with 5 years work experience; or
- You have an exceptional ability in your field of practice.
Applicants with advanced degree such as master’s, Ph.D or bachelor’s degree with 5 years related work experience easily pass this general eligibility test. This is a brilliant opportunity for most international students on F1 visa schooling in the United States to get their green card by filing a change of status petition using “national interest waiver” upon graduation from their institution with an advanced degree.
After meeting one of the eligibility requirements above, the applicant needs to demonstrate the second step by proving that he/she meets the 3 criteria listed below:
- The applicant must demonstrate that his proposed work has both substantial merit and national importance;
- The applicant is well positioned to advance his proposed work;
- As the applicant, you must also prove that when balancing the factors, it would be in the national interest of the United States to grant you a waiver of the normal job and labor requirements.
The substantial merit of the applicant’s field of practice can be demonstrated in a range of areas such as art, business, entrepreneurship, education, technology, science, culture, or health. Applicant is not required to demonstrate that his practice will create significant economic impact in the United States. However, applicant’s endeavor that creates significant economic impact may be favorably considered. Consequently, field of practice in the area of research, pure science and social science may qualify regardless of whether they translate to economic benefit or not for the United States.
In determining whether the applicant’s endeavor is of national importance, what the USCIS considers is the prospective potential impact of the applicant’s practice. The prospective impact of the applicant’s endeavor is not evaluated based on geographical terms alone. The USCIS rather considers the brother implication of the applicant’s area of practice. Applicant’s endeavor that focuses on one geographical area of the United States may be considered to have national importance if the applicant’s practice is beneficial to the location. Therefore, applicant’s endeavor that provides employment for U.S. employees in a small geographical area will be considered to be of national importance. The yardstick employed to qualify applicant’s practice is “national importance” rather than “national in scope”.
This is the easiest way for medical personnel to immigrate to the United States as permanent resident because the health sector of the United States currently prioritizes immigration visa for health workers in Health Professional Shortage Area (HPSA), Physician Scarcity Area (PSA), Medically Underserved Area (MUA), Mental Health Professional Shortage Area (MHPSA). However, the medical applicant will need to obtain a letter of support from a federal or state department of health which must be included in his/her application stating that the health worker’s employment is in the public interest. This category has been an easy means, most especially, for nurses and mental health workers in obtaining permanent residency in the United States. This should not be mistaken to mean only health workers qualify under National Interest Waiver. In fact, the law does not specify which job qualify for national interest waiver. By implication, national interest waiver is usually granted to those whose employment will greatly benefit the United States either at present or in the future and those who have exceptional ability. This was set out in the Matter of DHANASAR.
How to Apply for National Interest Waiver Employment Based Immigration (EB-2 NIW)
There are 2 ways of applying for the National Interest Employment Based Second Preference visa. The applicant can use separate filling or concurrent filing.
Separate Filing
Separate filing can be used when the applicant is not certain or he is doubtful about the strength of his/her application. By adopting this strategy, the applicant will first file Form I-140 and upon the approval of the petition, file Form I-485 Adjustment of Status Application.
Concurrent Filing
Applicant with strong NIW profile, especially qualified medical personnel, can file both their Form I-140 Petition for Alien Worker and Form I-485 Adjustment of Status together in a single application. It should be noted that your country’s priority date must be current for you to use concurrent filing strategy. The priority date for each country can be found in the United States Department of State’s Visa Bulletin. India and China apparently do not have current priority date.
Advantages of National Interest Waiver Application for Employment Based Immigration
- Offer of employment is not required to get approved for national interest waiver green card. Having an advanced degree or exceptional ability with present or future national benefit of your career to the United States is sufficient for the grant of the application.
- Employer sponsorship is not required for the grant of your application. You can file the petition without a job offer or sponsorship by any employer.
- Permanent Labor Certification is not required for the grant of your application. Therefore, you do not have to proof shortage of employees in the U.S. labor market in your occupation to qualify for national interest waiver green card.
The eligibility criteria is less strict because you only need to proof exceptional ability or substantial benefit to the United States as opposed to EB-1A green card where you have to proof extraordinary ability. All applicants should take note that exceptional ability is not the same as extraordinary ability in EB-1A Immigration. Extraordinary ability is a much higher standard which requires international or national acclaim whereas exceptional ability only requires that you are just above average in your area of practice. Therefore, approval by USCIS for EB-2 NIW is significantly higher than EB-1A.
Who can migrate with you?
Upon the approval of your Form I-140, your spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States under E-21 and E-22 immigrant status. Your family members can file Form I-485 Adjustment of Status to get their green card.
Watch out for my next post which will discuss how health workers can easily immigrate to the United States.
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