One of the main issues with the process for lawful permanent residents (green card holders) is that it doesn’t make many provisions for business owners or those that own their own practice. For this reason, entrepreneurs can seek to apply for the EB-2 NIW to bypass certain requirements that other EB-2 applicants must respect.
The EB-2 green card is mainly for two groups of people: those that have advanced degrees and those that can demonstrate having exceptional ability in their field. Anyone applying under either of these qualifications needs to first have a valid job offer from a U.S. employer. That employer would need to go through the process of obtaining a PERM Labor Certification, which involves running an ad campaign with the purpose of hiring a qualified U.S. worker for your position.
The purpose of the PERM is to prevent employers from taking advantage of the immigration system by replacing qualified U.S. workers with cheaper labor abroad.
What Is a National Interest Waiver?
For those that either do not want to or are unable to get a PERM, you may be able to apply to have the PERM requirement waived by the USCIS through a National Interest Waiver (NIW). As we will explain in detail below, the overall goal of the NIW is to prove that your work will be more beneficial to the U.S. than it would be to enforce the PERM requirement.
Who is the NIW for?
If you are granted an NIW, you will also not be required to have an employer or a job offer in order to obtain an EB-2. This is extremely beneficial and even essential for anyone who is planning on starting a new business or practice in the U.S. Many small business owners, lawyers, and doctors use this green card option to bypass the PERM and job offer requirements and obtain the EB-2.
However, there are certain qualifications that must be met in order to prove that your work will be in the nation’s best interest.
How Can I Qualify?
Under normal circumstances, it is considered in the nation’s best interest to enforce the PERM requirement in order to protect the jobs of U.S. workers. Therefore, you and your attorney must create a case showing that your business, practice, or research will be even more beneficial.
In the past, a legal decision called the Matter of New York State Department of Transportation throttled the number of EB-2 NIW petitions that were approved. Fortunately, a new decision was made in 2016 called the Matter of Dhanasar which greatly increased the availability of this option. It allowed for a three-requirement approach for the NIW:
Requirement 1: You need to prove that your work or endeavor will have a substantial positive impact on the science, technology, health, culture, education, or business of the U.S.
Requirement 2: You must be able to show that you are capable of making your work succeed. The factors that will be taken into account include your educational background, work history, past successes, current progress on your work, and relevant skills. Keep in mind that you do not need to prove that your endeavor will succeed, only that you are capable of advancing it.
Requirement 3: Here, you must prove that the U.S. would stand to benefit “on the balance”. This means that your case must make it clear that the U.S. would benefit more from your work than it would by enforcing the PERM requirement.
As you can see, the requirements are relatively vague and are largely up to the discretion of the officer who evaluates your case. One of the most important aspects of obtaining an EB-2 NIW is to argue your work and qualifications in a way that shows that you fulfill each requirement. The most effective way to do this is to have an experienced NIW attorney compile your evidence and argue your case.
How to Apply for an NIW
The process of applying for an EB-2 NIW is similar to the process of applying for a normal EB-2 green card. However, there are some extra documents and forms that need to be included in order to get your NIW. Here are the main documents you will need, though your attorney can tell you if more documentation is required:
- The I-140 immigrant petition for alien workers
- The ETA-750B application for alien employment
- A petition letter that argues your case, this should be drafted by an immigration attorney
- Recommendation letters
- Proof of past successes and achievements that support your petition letter
- Evidence showing that you have at least 2 years of experience in your field
- Your resume or CV
- Other evidence showing that you are qualified to advance your endeavor. This can include conference talks, published work, or a membership in an esteemed organization.
- Affidavits from other leaders in your area of expertise
Letters of Recommendation
These recommendation letters should support the arguments in your petition letter, demonstrating that you are fully qualified to work in your field. As such, the letters can be from high-level managers, peers, colleagues, and former employers. Essentially, you want your letters to be from those that are familiar with your work and your field.
Keep in mind that the letters from your peers will hold less weight when being evaluated. The most valuable letters should come from from prestigious individuals in your field that were not involved with your work directly. There is no official minimum or maximum number of letters that should be sent as this is evaluated on a case-by-case basis.
EB-2 NIW Process
Once you and your attorney gather the evidence and the USCIS receives your petition, that date will be your priority date. You will need to consistently check the visa bulletin that is released monthly by the Department of State. These bulletins will give you the latest final action dates for each green card category according to the applicant’s country of origin. Once your priority date reaches the final action date given on the bulletin, a visa number will be available and you can move onto the next step.
Now that you have your visa number, there are two options for the next step. You can either adjust your status or go through consular processing. Which path you choose is dependent on whether or not you are in the U.S. when you apply for your green card. Those that are already in the U.S. can choose to adjust their status or use consular processing. Those that are outside the U.S. must go through consular processing.
Adjustment of Status: This involves submitting an I-485 Application to Register Permanent Resident or Adjust Status with the USCIS. This is only available to those that are currently under a nonimmigrant visa status.
Consular Processing: For this, you must make an appointment with the U.S. Consulate or Embassy in your home country. Once there, you will need to go through a consular interview with an immigration officer to determine if your case is legitimate and if your EB-2 NIW evidence holds.
If you can choose between these two, consular processing may be the faster option depending on how busy the U.S. Consulate or Embassy is in your home country. Consult with your immigration attorney to determine which route is most appropriate for your situation.
Do the EB-2 NIW Requirements Differ for Physicians?
If you are a physician who is looking to use the EB-2 NIW to open up his or her own practice in the U.S., you will need to work in a medically underserved area for the first 5 years of your practice. Alternatively, you can show that you will work in a Veterans Administration (VA) hospital during this 5-year period. That being said, you should take a look that the specific criteria laid out for NIW physicians by the USCIS.
EB-2 NIW Rejection/Denial
The first thing to understand is that there is a difference between having your petition rejected and having it denied. This comes down to the two-stage approach that is taken when analyzing your case.
An evaluating officer will first check to make sure that all necessary evidence and forms have been submitted. If everything is in order, the officer will go on to evaluate the arguments and evidence to determine if you are qualified for an EB-2 NIW. However, if you are missing an item or your fee was not paid correctly, then your petition will be rejected and returned to you without a refund. If your petition makes it to the second stage and is not approved by the evaluating officer, then it will be considered denied.
If your petition is rejected, then you and your attorney can simply fix the errors or missing items and refile your petition with a new filing fee. However, if your petition is denied, you can either file a motion to reopen or reconsider your case or you can appeal to the Administrative Appeals Office for a second opinion. It is important that you do not attempt these delicate legal procedures without the help of a qualified immigration attorney.
A third possibility is that you may receive a Request for Evidence. This means that, rather than reject or deny you petition, the USCIS is giving you the opportunity to provide missing supporting information. Like with a denial or rejection, the first thing that you need to do is to take the RFE to your attorney. This is because the USCIS will give you a limited window in which to respond to the RFE. Your attorney can help you craft a detailed response that addresses all of the issues brought up in the RFE.
How Our Immigration Attorneys Can Help
Whether you’re applying for an EB-2 NIW green card for the first time or you’re dealing with unforeseen obstacles such as rejection or RFEs, it’s always advisable to make sure that you have an experienced green card attorney in your corner.
The dedicated team of experienced lawyers at SGM Law Group specialize in employment-based immigration and have helped countless people obtain their EB-2 NIW. From filing to adjustment of status, our lawyers will work with your step by step to ensure that you are on the optimal route to your future in the U.S.
If you would like to set up a consultation, feel free to contact us and put your case in the right hands.