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  • Writer's pictureRathee Law Firm


I. Introduction

There is a pool of people who come to the United States to work. Every person who is willing to work in the United States is required to have an employment authorization before they can start working. An authorization may be granted either under a ‘Temporary Work Visa’ or a ‘Permanent Work Visa’. The Temporary work visa also known as non-immigrant visa is extended to students, trainees, intracompany transferees, and the like. Immigrant visas, on the other hand entitle the foreign nationals to lawfully work and live permanently in the United States. A foreign national who attains the status of permanent resident is entitled to apply for any job in the country and is allowed to stay without employment. A Lawful Permanent Resident is further eligible to apply for citizenship on completion of 5 years on the LPR status. Immigrant visas are divided into 5 categories based on the preferences (EB-1 to EB-5) including special immigrants, persons of extraordinary abilities, business investors and the like. The USCIS provides for a yearly limit for each category which in aggregate must not exceed 140,000 principal immigrants along with their dependents. Unlike other EB preferences the EB2- NIW petitioner are not required to provide a Labor Certification which contains attestations by the US employers of the numbers of U.S. workers available to undertake the employment sought by the applicant, and the effect of the alien’s employment on the wages and working conditions of U.S. workers similarly employed.

II. What is EB2-NIW and why the exception?

An alien with extraordinary ability, or any person on behalf of such alien may file an I-140 visa petition for classification. The Second Preference category of the Immigrant Visa i.e., EB2, provides for permanent residency to professionals holding advanced degrees, or persons who hold exceptional abilities in arts, science, or business.

Any alien filing for EB2 under the ‘Advance Degree category’ is required to have an advance degree from any local or foreign equivalent in addition to a progressive work experience of 5 years in the field. The alien is further required to produce sufficient documentation including but not limited to academic record of the U.S. degree or official academic record of foreign equivalent degree, letter from the current and/or former employer to show the work experience.

An applicant filing for immigrant visa under the ‘Exceptional Ability category’ must be able to show exceptional abilities in the fields of science, art, or business. Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. A petition on behalf of an alien under this category must be accompanied by evidence showing that the alien has obtained national or international acclaim and that his or her achievements have been recognized in the field of expertise. Such evidence shall include evidence of a one-time achievement (that is, a major, internationally recognized award), or at least three of the requirements as provided for under Section 204.5(h)(3). Alternatively, the alien may also provide for comparable evidence in case the above do not apply to the alien’s occupation. EB-2 petitions in general are required to be accompanied by a certified Application for Permanent Employment Certification from the Department ofLabor (DOL). As a general norm, the employer filing for this visa must be able to demonstrate the ability to pay the offered wage as of the priority date and continuing until the alien obtains lawful permanent residence status. However, interestingly, the alien/foreign national may request waiver of this requirement under ‘National Interest’ through a petition filed with the USCIS. To apply for this exemption, the petitioner/alien must submit Form I-140 form with the USCISalong with evidence to support the claim that such exemption would be in the national interest. Since the national interest waiver waives the requirement for job offer, the alien is not required to demonstrate employer’s ability to pay a wage.

III. National Interest Waiver

Any alien requesting a National Interest Waiver (‘NIW’) seeks waiver of job offer and labor certification requirement because it is in the interest of the United States. The alien/foreign national is at the liberty to file self-petition for EB-2 along with his/her NIW. The Matter of Dhanasar laid down a three-prong test for determining eligibility of any alien for NIW.

a. The proposed endeavor has both substantial merit and national importance.

b. The alien is well positioned to advance the proposed endeavor.

c. That, on balance, it would be beneficial to the United States to waive the requirements of job offer and thus the labor certification.

IV. Conclusion

In conclusion, the EB-2 National Interest Waiver is a pathway that opens doors to skilled individuals who can demonstrate their significant contributions to the United States in their respective fields. Remember, thorough preparation and attention to detail are crucial when applying for an EB-2 NIW. Seek guidance from immigration professionals, stay informed about updates in immigration policies, and tailor your application to showcase the unique ways in which your work benefits the national interest.

~Kunal Phatangare

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