National Interest Waiver Green Cards

The United States Congress created the National Interest Waiver (“NIW”) green card category for qualified immigrants who are members of the professions holding advanced degrees or their equivalent; or who because of their exceptional ability in the sciences, arts, or business, will provide a substantial benefit to the national economy, cultural or educational interests, or welfare of the United States.

 

Requirements: New NIW Standard introduced in December 2016 replaces Old NIW Standard in place for almost 20 years

To determine who is qualified, USCIS has adopted the standards set forth in Matter of Dhanasar, 26 I&N Dec 884 (AAO 2016) (DHANASAR).  DHANASAR vacated the previous framework introduced in Matter of New York State Department of Transportation, 22 I&N Dec. 215 (AAO 1998) (NYSDOT) to “provide greater clarity, apply more flexibility to circumstances of both petitioning employers and self-petitioning individuals, and better advance the purpose of the broad discretionary waiver provision to benefit the United States.” Matter of Dhanasar, 26 I&N Dec 884 (AAO 2016)

Under the new framework in DHANASAR, USCIS may grant a national interest waiver if the petitioner demonstrates by a preponderance of evidence:

  • The foreign national’s proposed endeavor has both substantial intrinsic merit and national importance;
  • That the foreign national is well positioned to advance the proposed endeavor; and
  • 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.

Under the “preponderance of evidence” standard, a petitioner must establish that he or she more likely than not satisfies the qualifying elements. Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

If you have a Master’s degree or equivalent, or are exceptional, and can meet the standards established by DHANASAR, you can get a green card without:

  • a prospective offer of permanent employment from a United States petitioning (sponsoring) entity, and

I do NOT have a Master’s degree or equivalent.  How do I prove to be exceptional?

Exceptional ability is demonstrated by submitting evidence of at least three of the following, or comparable evidence if these standards do not readily apply:

  • An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
  • Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least 10 years of full-time experience in the occupation for which he or she is being sought;
  • A license to practice the profession or certification for a particular profession or occupation;
  • Evidence that the alien has commanded a salary or other remuneration for services, which demonstrates exceptional ability;
  • Evidence of membership in professional associations; or
  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, government entities, or professional or business organizations.

Again, if you have an advanced degree or equivalent, you do NOT have to show exceptional ability.  Exceptional ability is only required for those who cannot meet the advanced degree or equivalent requirement.

Logistics

The EB-2 NIW petition is filed through a Form I-140 petition for immigrant worker with the USCIS (United States Citizenship and Immigration Service) at a central filing location. Current processing times for the EB-2 NIW vary.  In the past, we have seen some cases are decided favorably in less than 2 months (fast), some in 4 months (average), or some more than 4 months (sometimes).

Premium (expedited 15 day) processing has not been available the NIW category.   In recent times (as of June 2017) some NIW adjudications have taken more than a year, which reflects major backlogs at USCIS, particularly for matters which cannot be premium processed.

If you are a J-1, F-1, H-1B, or in any other temporary (nonimmigrant) status, it is important to understand that an approved (or denied) I-140 petition, in and of itself, does NOT change your status from nonimmigrant (J-1, F-1, H-1B, etc.) to immigrant (green card).

Rather, the I-140 serves as the basis for an additional follow-on application, whose approval results in lawful permanent resident (green card) status.  The I-140 approval, however, is a HUGE step towards your green card!

The follow-on green card application can be done in two ways: 1) via immigrant visa processing, submitted to a US Consular Post outside the United States (rare); or more commonly, via Form I-485 application for adjustment of status, submitted to the USCIS inside the United States.  Current processing times for the I-485 also vary, could be 6 months to a year, or more.

Travel Warning for J-1 Research Scholars

For those applicants who in J-1 nonimmigrant status and filing an I-485 application, once the I-485 is submitted to USCIS, INTERNATIONAL TRAVEL IS NOT PERMITTED until you have something called an AP (Advance Parole) in hand.

(This travel restriction also applies to dependents of J-1s, and some other nonimmigrants including E-3s, TNs, or O-1s, but NOT to applicants in H-1B or L-1 status. For reference, see USCIS I-485 instructions, upper right hand corner of Page 7, here: https://www.uscis.gov/sites/default/files/files/form/i-485instr.pdf)

For J-1s (and some others as explained above) departing the U.S. before possession of the AP can result in DENIAL of the I-485.  Further, even if the applicant does secure an AP prior to travel, and then departs the U.S., the applicant MUST ALSO RE-ENTER USING THE AP.  For example, leaving with the AP in hand, but then returning pursuant to a J-1 visa, could also lead to DENIAL of the I-485.

From the time of submission (of the I-485) it can take 2-3 months or longer for travel permission (via the AP) to arrive.  In other words, after filing the I-485, a J-1 (and some other nonimmigrant classifications) are stuck in the US for 2-3 months, or longer, until the AP is approved and in the applicant’s possession.

In certain limited circumstances, it might be possible to secure “Emergency AP” from a local USCIS office, which would allow an applicant to depart the United States and re-enter for urgent humanitarian or business reasons.  As it relates to securing emergency AP, if the need arises, inform immigration counsel asap, and note: 1) the process is discretionary, so it may or may not be granted, depending on the nature of the emergency and the discretion of the particular officer at the local USCIS; 2) despite having paid for the I-131 application for AP (advance parole) with the submission of the I-485, an emergency AP request could require an additional $575 filing fee, payable to the local USCIS office; and 3) emergency AP requests might be outside the scope of typical I-485 engagement.  Typically, there is significant effort involved in preparing an applicant to make these requests, including review of supporting evidence, sometimes drafting letters, and multiple communications.

Processing Times Vary Based on Per-country Limitations

The entire process described above, from start to green card, could take one year, give or take, considering fluctuating processing times and unforeseen delays.

But for some people, from countries with a high demand for green cards in particular (such as India and China) it could take several years or more.  The U.S. Department of State sets an annual numerical limit on the number of green cards issued, per-country.  For applicants born in countries where the demand for green cards exceeds the supply (such as India or China) the process takes considerably longer.

Practically, this means that for applicants from the over-subscribed (backlogged) countries (such as India or China) once an EB-2 I-140 NIW is approved, they still have to wait longer for the green card, possibly for several years or more.

Technically, they are waiting for their “priority date” to be “current,” which results in eligibility to either file, or be approved for, the green card (via immigrant visa processing or I-485 adjustment of status).  A priority date for EB-2 NIW cases is established on the date of filing the I-140 petition, and “locked in” once the I-140 is approved.  It helps to think of the priority date as your place in the green card line.

For applicants from countries which are not backlogged, known as “worldwide” applicants (currently every country other than India, China, Mexico and the Philippines) there is historically, no additional waiting.

In other words, the worldwide applicant is eligible to file the I-140 NIW petition concurrently with an I-485 application for adjustment of status, or immediately after I-140 approval, because their priority dates are already current.

It is possible to know exactly which priority dates which are considered current in every employment (and family) based green card category, by checking the latest U.S. Department of State Visa Bulletin, which is updated on a monthly basis.

While filing concurrently may be faster, it is also possible for worldwide NIW applicants to file a stand-alone I-140, to “test the waters,” before filing the I-485.  Breaking it up into two steps avoids the risk of losing the associated cost of filing an I-485, in the event the I-140 fails.

But it will also delay the green card, which can be unattractive if you are looking for jobs that require you to have a green card.  Whether to file stand-alone or concurrently is usually a case-by-case decision, to be discussed with immigration legal counsel.

Link to Official National Interest Waiver Legal Resources

USCIS Official Page for NIWs: https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2

Matter of Dhanasar: https://www.justice.gov/eoir/page/file/920996/download

USCIS Q & A re: NIWs for Entrepreneurs, See Questions 11-17: https://www.uscis.gov/news/employment-based-second-preference-immigrant-visa-category-frequently-asked-questions-regarding-entrepreneurs-and-employment-based-second-preference-immigrant-visa-category

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To explore your NIW eligibility please do not hesitate to contact me at michael@ryvinlaw.com or 1-415-215-6883 to schedule a call to discuss your case. No charge for initial evaluations of NIWs.

 

 

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