Why the EB-2 NIW Visa is not for everyone
EB-2 National Interest Waiver Visa has seen an uptick in popularity in recent years. This has been in part to a 2016 decision titled Matter of Dhanasar, where the Administrative Appeals Office (AAO) overturned nearly two decades of precedent on how an individual qualifies for a National Interest Waiver (NIW) under the Employment-Based Second Preference Category (EB-2).
Most EB-2 petitions require a valid, permanent job offer and a labor certification from the Department of Labor (DOL). However, a National Interest Waiver, or “NIW,” allows USCIS to waive the job requirement if the applicant (1) is a member of the professions holding advanced degrees; or (2) has “exceptional ability” and will “substantially benefit prospectively the national economy, cultural, or educational interest or welfare” of the United States.
How the National Interest Waiver Has Changed?
Before Dhanasar, USCIS often issued confusing and inconsistent decisions, making it difficult to predict the outcome of an EB-2 NIW petition. This was because the Immigration Act of 1990 that codified “national interest” left it mostly undefined so that this test could be as flexible as possible.
This is where Matter of Dhanasar changed the course of EB-2 NIW petitions. The AAO provided clearer guidelines to the national interest waiver standard after EB-2 classification has been established. Now, USCIS may grant a NIW if the petitioner shows, by a preponderance of the evidence that:
- The proposed endeavor has both substantial merit and national importance;
- The petitioner is well-positioned to advance the proposed endeavor;
- On balance, it would be beneficial to the United States to waive the requirements of a job offer and a labor certification.
What Makes You Stand Out?
After showing that you meet the basic qualifying requirements (education degree) you must show how you are exceptional. If you have done something that decreases costs, developed something new, or offer a new product or service, you may be on the right track. The next question is: can you get a third party to document your exceptional abilities? You must also prove that others want your service, product, or idea.
Myths About the National Interest Waiver
Make no mistake – a National Interest Waiver is not easy to get. Right now, is probably the hardest time to get it. Unfortunately, misinformation about the National Interest Waiver is causing people to spend time and money on a petition for which they do not qualify. There are too many unqualified immigration service providers making guarantees and selling people false hope for a green card. This is a problem that is slowly starting to unravel itself as more and more people are getting denial letters.
Many people who come into our office determined that they qualify for an EB-2 NIW based on misinformation they read or heard. The conversation often starts with an anecdote from a friend who applied as “an accountant” or “engineer” and so on. This friend applied, got a work permit, a social security number, travel authorization, and is now just waiting for their green card. The client compared him or herself to the friend and is convinced that if the friend can do it, so can they.
Here is when our analysis of a potential client’s credentials begins. Sometimes this leads to a difficult conversation aimed at educating the client and managing expectations. We often tell our clients the following:
1. You do not qualify for a NIW just because you have a degree.
A degree by itself does not qualify you for a waiver of the job offer and labor certification requirement. A degree is just the first step. A person with a bachelor’s degree plus at least 5 years of qualifying experience OR an Advanced Degree like a master’s degree or PhD is not enough. A NIW specifically requires a lot more evidence than just a degree.
2. You do not qualify for a National Interest Waiver just because you work in a qualifying field.
Working in a qualifying field alone does not get you a waiver of a job offer and labor certification. For an EB-2 NIW, you must stand out on your own. The work that you do and what you have to offer must be of interest to the United States. You need to prove your credentials and experience. It requires substantial evidence showing how you are one of the best in your field.
3. A Work Permit Does Not Mean that Your EB-2 NIW Petition Will Be Approved
If you are in the United States, you can apply for an EB-2 NIW with adjustment of status at the same time. This means that your EB-2 NIW petition will go to one office and your adjustment of status application will go to another. The adjustment of status application will most likely include an application for Employment Authorization (Form I-751) and Travel Permit (Form I-131). If there are no issues, the Employment Authorization and Travel Permit applications will get processed and approved first. As a result, you will probably get a work permit, a social security card, and a travel permit before your EB-2 NIW petition is decided.
However, your EB-2 National Interest Waiver petition can still get denied. You should be aware of this possibility and understand the consequences of a denial letter. If your EB-2 NIW is denied, your Employment Authorization will be canceled. You will get a letter from USCIS telling you the basis for the denial, your options, and that you have about 30 days to leave the country. You can avoid this possibility by only applying for the EB-2 NIW petition without adjustment of status. This is a conversation that you must have with your lawyer in order to determine the right strategy for your case.
Talk to a Lawyer
There are too many immigration service providers who are not lawyers claiming to have a secret formula for success. These companies are all over the Internet selling false hope. They often call themselves “immigration consultants” or “CEOs” that specialize in immigration. Most of these providers do not have a license to practice law. They will tell you that you qualify for the EB-2 NIW through a quick consultation and make promises they cannot keep.
There is absolutely nothing wrong with getting information from multiple sources, but those sources must be reliable. After all, immigration to the United States is a long and difficult process. But you must be careful with guarantees and things that sound too good to be true. We cannot stress the importance of this enough. Lawyers cannot make guarantees about an outcome. It is unethical and bad practice. A good lawyer will give you the good and the bad so you can make an educated decision.
Our experienced immigration attorneys can help, contact us at 1 (407) 818-1244 or email service@immigration-uni.com. We speak English and Spanish.
