AM I ELIGIBLE FOR A NATIONAL INTEREST WAIVER UNDER THE EB-2 VISA?
The short answer is maybe. There is a chance that you are still eligible for an employment visa despite not having an employer in the United States under the EB-2 visa category. The EB-2 visa is generally known to be available to skilled candidates with advanced degrees in a field, or for individuals who have “exceptional ability” in the arts, sciences, or business; both categories normally require an employer to petition on behalf of the foreign national. However, it is in some circumstances, possible to self-petition for an EB-2 visa without an employer or a job offer. How? Well, that requires applying for something called a National Interest Waiver as part of your EB-2 application.
WHAT IS A NATIONAL INTEREST WAIVER?
Both the first category and the second category of the EB-2 visa normally require both an employer and what is known as a Program Electronic Review Management (PERM) Labor Certificate. A PERM Labor Certificate requires that the United States Department of Labor confirm that:
1. There are not enough U.S. Workers who are able and qualified to perform the job the employer is petitioning the foreign worker to peform; and
2. The wages nor the working conditions of U.S. workers in the field will be adversely affected by employing the foreign worker.
Acquiring a PERM certificate takes a lot of time and patience. The first step in obtaining your PERM certificate is to acquire your priority date and have it become current. A priority date is, either: (1) the date on which the United States Department of Labor accepts your Labor Certification Application for processing; or, (2) the date the immigration petition is accepted for processing by USCIS. Unfortunately, when you apply, and your nationality, are two very important factors. For example, the January 2018 Visa Bulletin shows that Chinese and Indian citizens whose priority dates become current in January 2018 applied on August 8, 2013, and November 22, 2008, respectively.
The good news is that to qualify for a National Interest Waiver neither an employer nor a PERM Labor Certificate is required. The National Interest Waiver allows an applicant without an offer for a permanent job in the United States, to self-petition for an EB-2 Visa and certain normal protocols are waived if they are approved for the National Interest Waiver.
So, who is often found eligible for National Interest Waivers? Typically, the National Interest Waiver to the EB-2 visa appeals to scholars and researchers who want to come to the United States to teach and/or research, but whom do not yet have an employer or position lined up. However, they hold advanced degrees or are otherwise individuals of exceptional ability in their field(s). The NIW can be versatile and work for many, but in addition to satisfying the unique NIW requirements, the applicant will still have meet the basic EB-2 eligibility requirements. Principally, what this means is that even before the National Interest Waiver is considered, the applicant will still either have to prove that: (1) they hold an advanced degree; or if not applicable, (2) that the applicant is “exceptional” in the arts, sciences, or business. Typically, to be exceptional in these categories you must have an advanced degree anyway, and/or have achieved significant success and notoriety in your field. Keep reading to see if you could possibly qualify for a National Interest Waiver.
WHAT DO I NEED TO PROVE TO OBTAIN A NATIONAL INTEREST WAIVER?
As recently as 2016, the Department of Homeland Security and U.S. Citizenship and Immigration Services established a new framework and three-part test demonstrating what is generally required to obtain a National Interest Waiver. This decision overturned previous case precedent that had a broadly defined three-part test that had been adhered to for many years. Now, under the new framework, the petitioner needs to show that: (1) their proposed endeavor has both substantial merit and national importance, (2) they are well positioned to advanced the proposed endeavor, and (3) it would be beneficial to the United States to waive the requirement of a job offer and subsequent labor certification. Matter of Dhanasar, 26 I&N Dec. 884 (AA) 2016). Although this is less broad than the previous guidelines, the exact terms and qualifications are still unclear and are still in the process of being defined.
The new test broadened the idea of what qualifies as being of “national importance” to the United States. Previously, the vague “national interest” requirement produced confusion and inconsistent NIW approvals. Now, work that has “substantial merit and national importance,” as emphasized by the new test, means that it the work is valuable to the interests of the United States and has a potential positive impact. This work would generally have substantial national impact, but the court in Matter of Dhanasar stated the impact could also be regional if it had broader implications as well. For example, an applicant looking to be a healthcare worker at a local hospital, would not be granted the National Interest Waiver unless he could prove that his work would impact the national or regional health care system beyond just the local hospital. This example also applies to researchers in a particular field, as they would need to show that their work projects an interest outside of the local University and into the national or regional arena. This could be shown by the request of the U.S. Government, or other foreign governments, for the individual to come perform work in and for the United States or for a foreign government.
Proving all three elements compel similar, and very important requirements. The petitioner must show evidence that demonstrates their potential national impact. This evidence can include research funding from a government-related agency, citations that prove the petitioner’s work is being used and implemented in the field, published articles, membership in recognized associations within their field, letters of recommendation that attest to the benefits of the petitioners work (typically more than 1), published articles (the more the better), and any other significant achievements in their field of expertise. These are just some examples of evidence you are able to provide, but is not a complete nor definite list.
To be granted a National Interest Waiver Visa, the petitioner needs to prove that they meet all three criteria established by the Department of Homeland Security and Immigration Services, in order to bypass the normal EB-2 requirements of an U.S. petitioning employer and a PERM labor certification. Although when self-petitioning the burden is on the applicant to prove their extraordinary skills and benefit to the United States, an immigration attorney trained in this area of law would be beneficial to present the petitioner’s skills and abilities in the best and most effective light possible.
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