Foreigners who are highly skilled or who hold advanced degrees have several options in pursuing a U.S. green card in the United States of America. One of the most coveted waivers over the past two years has become a process known as the EB-2 National Interest Waiver (NIW), the employment-based second preference visa with national interest waiver. Even though this process of obtaining a U.S. green card has been in effect for several years, the stipulations required have made it difficult for applicants to become eligible. Since 2016, the U.S. Supreme Court did reset the threshold for eligibility making it much easier for foreigners to qualify and receive an approval. A great advantage of the EB-2 NIW is that it provides a relatively swift route to lawful permanent residence. Applicants can obtain legal residency without the sponsorship of an employer and without having to undergo the complex and lengthy labor certification process. Getting the advice from an experienced immigration lawyer is advised when applying for an EB-2 NIW.
The Fundamentals of an EB-2 NIW
EB-2 visas are accessible to two categories of applicants:
- Members of professions who possess an advanced degree (or the equivalent)
- Those who can otherwise demonstrate an “exceptional ability” in their particular field of study such as the sciences, arts, medicine, business or athletics who will significantly benefit the national economy, cultural or educational interests of the welfare of the U.S.
Applicants in the first group must be seeking employment in the U.S. that demands an advanced degree (such as a bachelor’s degree and five years of progressive experience in the field), plus the required job qualifications. For foreigners with extraordinary ability visas they must be able to show that their ability or skills are significantly above the normal.
What is a National Interest Waiver
According to the EB-2 visa procedure, all applicants must follow the Labor Certification process, which is also known as the Program Electronic Review Management (PERM) process. This process is done by the U.S. Department of Labor where a market test is conducted to determine that there are no qualified U.S. based workers for the position in question. An employer filing an employment based petition and sponsoring a U.S. green card application must first file a Labor Certification application with the appropriate state agency. Once the petition is approved the employer must then start a recruiting campaign and submit results of the campaign to the state agency. If the Department of Labor is in agreement that there are no U.S. laborers available to fill the position based on fair recruitment practices, a Labor Certification will be granted. The whole process may take as little as six months to complete or as long as three years.
As a substitute, an individual can request that the Labor Certification requirement be waived as it is in the best national interest of the US to do so. This is known as the “National Interest Waiver,” or NIW. If an applicant can attest that it is in the national interest, both the job offer and Labor Certification requirements will be waived. He or she can petition for an EB-2 visa directly with USCIS, rather than depending on an employer to file a petition for an employment-based visa.
There are several pivotal differences between traditional EB-2 cases and EB-2 NIW cases.
- First, in an EB-2 case, an employer must be the petitioner, with the foreigner being the beneficiary of the application. With an EB-2 NIW case, a foreigner can petition on his or her own behalf or an employer can file a petition for him or her.
- Secondly, in an EB-2 case, the employer must complete the Labor Certification process with the Department of Labor (DOL), which can take a long time. The Labor Certification process is waived in EB-2 NIW cases.
- Thirdly, EB-2 cases involve a job offer. EB-2 NIW cases waive the job offer stipulation.
- Fourthly, it is normally more complicated to secure an approval for an EB-2 NIW visa than it is to be approved for an EB-2 visa if the applicant does the application alone. However, it is advised to seek the advice and help of an immigration attorney.
The Three Prong Test in the NIW Application Process
In 2016, the United States Citizenship and Immigration Services (USCIS) Administrative Appeals Office issued a law that established new guidelines that dictates whether an applicant for an EB-2 visa is eligible for a National Interest Waiver (NIW). In Matter of Dhanasar, USCIS explained the requirements for receiving an NIW visa and instituted a three prong test that applicants need to follow in order to receive a visa.
Under the Dhanasar standards, an applicant must prove the following three tests:
- The foreigner’s proposed endeavor has both substantial merit and national significance
- The foreigner is well-positioned to advance the proposed endeavor and
- On balance, it would be beneficial to the U.S. to waive the job offer and labor certification requirements of the EB-2 category
First, in assessing whether a proposed endeavor has substantial merit and national importance, USCIS will not restrict applications to certain fields, such as science or technology. Foreigners in all professions may apply as long as they are seeking endeavors that would benefit the U.S. USCIS judges this criterion by looking at the potential prospective impact of the undertaking, through reviewing the importance of the problems that an applicant may address through his or her endeavor.
Secondly, in determining whether the applicant is well-positioned to advance the proposed endeavor, USCIS will consider a number of factors which may include:
- Education, skills, knowledge, and record of achievements
- Model or plans for future activities
- Progress towards attaining the proposed endeavor and
- Interest of potential applicants, users, investors, etc.
Thirdly, USCIS will consider whether the U.S. would benefit from the applicant’s contributions even if American laborers are available or not and if the national interest is sufficiently urgent to warrant by passing the labor certification process. In making this determination, a USCIS adjudicator must balance the national interest of requiring labor certifications to protect American workers against the benefits that the applicant would bring to the U.S.
Additionally, to meet the three prong test an applicant must also prove that the applicant of the professions holding an advanced degree, or an individual must have exceptional ability in the sciences, arts or business.
An Immigration Attorney Can Help
Before applying for an EB-2 NIW, getting the advice and help from an Immigration Attorney is highly recommended for such a venture will not be an easy one. Contact Gambacorta Law Office today 1-847-786-2599.