EB-2 NIW (National Interest Waiver)

Clarification of Common Myths and Misunderstanding

From January to October in the year 2013, we have had over 300 NIW (National Interest Waiver) cases approved. Our approval rate for NIW (National Interest Waiver) during this period of time is over 99%. For case filed under our guarantee service, the approval rate is 100%, the same as our approval rate in 2012.

Because of our experience in dealing with clients, answering clients’ questions/concerns and our numerous successful petitions, I would like to take this chance to clarify some of the most common myths and misunderstanding about qualification for EB2-NIW (National Interest Waiver).

Below, please find our response to some of the most common misconceptions about EB2-NIW (National Interest Waiver), as well as success stories for relevant cases.

 

1.      “EB2-NIW (National Interest Waiver) is Only for Scientists and Researchers”

Many people think that only scientists and researchers can apply for EB2-NIW (National Interest Waiver). This is not true. We have successfully filed EB-2 NIW (National Interest Waiver) for clients who are medical doctors, dentists, pharmacists, engineers, accountants, writers, opera singers, website designers, entrepreneurs and visual art designers, just to name a few.

In fact, anyone who can meet the basic requirements (advanced degree or equivalent, or exceptional ability) under EB-2 (Second Preference of Employment-Based Immigration) might be qualified to file EB-2 category with the request of National Interest Waiver if arguments can be made that the their credentials can pass the three prong test set by NYSDOT (New York State Department of Transportation). The three prong tests are:

1. The proposed employment must be in an area of Substantial Intrinsic Merit
2. The proposed benefit of that employment must be National in Scope
3. The beneficiary must serve the National Interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

 

Please see below examples of  NIW (National Interest Waiver) cases we have had approved for those not working in the fields of science or research.

Opera singer: Success Story: EB2 NIW Approval for Opera Singer in 41 Days

Animator: Success Story:EB2 NIW Approval for a Freelance Motion Designer/Animator in the field of Design and Animation

VP of Investment Firm: Success Story: EB2 NIW Approval for a Vice President in the field of Automation

Web-Developer, no citations: Success Story: EB2 NIW Approval For Web-Developer without any Citations after RFE

Manager in Business/Oil and Gas Industry: Success Story: EB2 NIW approval for Vice President of the Oil and Gas Industry with the Extraordinary Ability in Business

 

 2.      “I Must Have a Job or Have a U.S. JoB Offer to Petition for EB-2 NIW (National Interest Waiver)”

You do not need to be currently employed in the United States or have a specific U.S. job offer to petition for EB-2 NIW (National Interest Waiver). The purpose of the national interest waiver is to waive the requirement that one must possess a specific employment offer. However, you do need to continue working in the same broad field of endeavor. We have successfully filed many EB-2 NIW (National Interest Waiver) cases for clients who were in the United States on H4, J2 or B1/B2 visas and therefore were not allowed to work. These clients, regardless being unemployed at the time we filed their cases, did have good achievements and were still qualified for EB-2 NIW approval.

Here is an example:

Mathematician unemployed at time of filing: Success Story: EB2 NIW approval for Mathematician Unemployed at the Time of Filing

 

3.      “If My EB-2 NIW (National Interest Waiver) is Approved, I Have to Keep Working for the Same Employer”

Your EB-2NIW (National Interest Waiver) approval is not tied to one particular job, and you are allowed to change your job as long as you continue working in the same field of endeavor under which your work has been defined in the national interest. It should be noted that the USCIS defines fields very generously, so as long as you are working in a related field of research there should be no issue.

For an EB-2 NIW (National Interest Waive) case, you are the petitioner as well as the beneficiary of your case so the approval “belongs to you.” Your case will not be denied or revoked by the USICS even if you change employers. As a matter of fact, many of our clients changed employers during/after they filed I-140 or I-140 approvals.

 

 4.      “If I Don’t Have a Ph.D., I Don’t Meet the Minimum Qualifications for EB-2 NIW (National Interest Waiver)”

“Advanced degree” is one the requirements under EB-2 (Second Preference Employment-Based Immigration). Since NIW is under EB-2 category, you need to meet the minimum requirement for EB-2. However, you do not need to possess a Ph.D. to meet the minimum qualifications for NIW (National Interest Waiver). If you do not have a Ph.D. you can meet the minimum qualifications by a.) possessing another advanced degree, such as a master’s degree or MBBS  b.) possessing the equivalent to an advanced degree (a baccalaureate degree plus 5 years progressive work experience in the field) c.) meeting the requirements for exceptional ability. We have had many cases approved for clients without Ph.D. degrees.  These clients were either still PhD students/candidates pursuing their degrees or they were already working with their master’s degree.

We will let you know at the time of evaluation if you meet the minimum qualifications for EB2-NIW (National Interest Waiver). Here are some success cases we filed for clients without PhD degree.

 

Lab Manager/No PhD: Success Story: EB2 NIW Approval for Laboratory Manager without PhD

PhD student, Biomedical Engineering: Success Story: EB2 NIW approval for PhD Student working in the field of Biomedical Engineering

Ph. D. Candidate in field of Computer Engineering: Success Story: EB2 NIW Approval for a PhD Candidate in the field of Computer Engineering

 

 5.      “I Don’t Have Many Publications or Citations so My Case Will be Too Weak to Apply for EB-2 NIW (National Interest Waiver)”

There is no “magic number” of publications or citations that will lead to NIW (National Interest Waiver) approval automatically. Generally, more publications show your original contribution to the field and more citations help to demonstrate the influence and implementation of your work. However, we have many strategies that we can employ to offset or justify a weak record for both. For instance, if the citation climate for your field is low, we can demonstrate this in the petition letter and use average citation data to show that your record of citation is actually strong for your field. We can also focus on other factors demonstrating the influence of your work to show that your work has had influence in other ways. We have a great deal of experience handling weak cases, and have had good success getting these cases approved.

Physician, low citation: Approved EB2 NIW for Physician with Minimum Citation Record in 4 Months without RFE

Web-Developer, no citations: EB2 NIW Approved For Web-Developer without any Citations after RFE

Field of Internal Medicine , 7 citations: EB2 NIW Approval for a Fellow in Critical Care Medicine in the field of Internal Medicine with only 7 Citations

Research Fellow in the Field of Agricultural and Biological Engineering, 14 citations: EB2 NIW Approval for a Research Fellow in the field of Agricultural and Biological Engineering with only 14 Citations

Postdoctoral Associate in the field of Cell and Molecular Biology, 17 citations: EB2 NIW Approval for a Postdoctoral Associate in the field of Cell and Molecular Biology with 17 citations

 

 6.      “I am not Currently in the U.S., so I Cannot Apply for EB-2NIW (National Interest Waiver)”

Another myth. You do not need to currently be residing in the U.S. to apply for NIW (National Interest Waiver) and can be anywhere in the world. After you I-140 NIW cases are approved, you can apply for a green card directly in your home country doing consular processing.

We have had many cases approved for clients living abroad at the time we filed their cases.  Additionally, your I-140 approval will never expire, so there is no time limit on when you must enter the United States.

 

7.      “I have to be in the United States for a Period of Time Before I Can File EB-2 NIW (National Interest Waiver)”

Not true. There is not limit on how long you have to be in the United States to file EB-2 NIW (National Interest Waiver).

 

8.      “I Cannot leave the United States after I File EB-2 NIW (National Interest Waiver) or My Case Will be Denied”

You can leave the United States or travel internationally after you file EB-2 NIW (National Interest Waiver) case. The case will still be processed by the USCIS as scheduled without being affected by your absence from the United States.

 

9.      “I have to be on H-1B visa in Order to File an EB-2 NIW (National Interest Waiver) Petition.”

You can file green card application on any visa status. There is not USCIS regulation restricting which visa status is allowed to file an EB-2 NIW petition. Most of our clients file EB-2 NIW on H1B, J-1 or F-1 OPT. But many of them filed on status such as O-1, L-1, F-1, B1/B2, F-2, H4 or J-2. For clients who were outside the U.S. at the time we filed their EB-2 NIW cases, they did not have a valid visa but their cases were still approved.

 

Conclusion

We hope this article has clarified to you some common myths regarding EB-2 NIW (National Interest Waiver) and help you understand your qualifications for this category. With over 300 EB-2 NIW (National Interest Waiver) case approvals in the year 2013, representing clients in a variety of fields and circumstances, we are confident that we possess the experience to develop a successful EB-2 NIW (National Interest Waiver) strategy for you. For a free evaluation of your credentials, please e-mail your CV to law@wegreened.com .

 

 

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North America Immigration Law Group (Chen Immigration Law Associates) is a U.S. immigration law firm dedicated to representing corporations, research institutions, and individuals from all 50 U.S. states regarding I-140 immigration petitions. We specialize in employment-based immigration petition and have a proven record of high success rate for the categories of: EB2-NIW (National Interest Waiver), EB1-A (Alien of Extraordinary Ability), EB1-B (Outstanding Researcher/Professor) and O-1 (Alien of Extraordinary Ability).

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With more than 16,000 EB-1A, EB-1B, EB-2 NIW and O-1 cases approved, we have first hand information on the manner in which the USCIS adjudicate I-140 cases. As the USCIS has constantly changed its adjudication standards for the EB-1A, EB-1B and EB-2 NIW categories, our firm's huge database of successful cases gives you unprecedented insight to USCIS adjudication trends. We carefully analyze the data for all of our cases and apply the results of our analyses toward giving our clients up-to-date advice and adapting our strategies such that we remain on par with the ever-shifting landscape of immigration law in the U.S. With us, you will always have access to important updates, strategies, and information so that you can make the most informed decisions about your case.

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