The EB-2 Visa (National Interest Waiver)
You may qualify for permanent residence without the need to obtain a certified labor certification through the Department of Labor if you either have an advanced degree or meet the exceptional ability requirements AND you can prove that the waiver of the labor certification is in the national interest.
EB-2 NIW Requirements
An advanced degree under the EB-2 category is considered to be a U.S. Master’s degree or doctoral degree or its foreign equivalent or a U.S. bachelor’s degree (or its foreign equivalent) followed by at least five (5) years of progressive experience in the field.
In order to qualify under the EB2 Exceptional Ability category, one must meet at least 3 criteria from this list:
- Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
- Letters documenting at least 10 years of full-time experience in your occupation
- A license to practice your profession or certification for your profession or occupation
- Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
- Membership in a professional association(s)
- Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
- Other comparable evidence of eligibility is also acceptable.
The National Interest waiver has gained a lot of popularity after the Dhanasar case, Matter of Dhanasar,26 I&N Dec. 884 (AAO 2016), which laid out a three part test the foreign national must pass:
- The foreign national’s proposed endeavor has both substantial merit and national importance;
- The foreign national is well-positioned to advance the proposed endeavor;
- Finally, that it would be, on balance, beneficial to the United States to waive the requirements of a job offer (PERM labor certification).
Under Dhanasar, entrepreneurs and self-employed individuals have new opportunities for a green card. If you demonstrate that you meet all three factors by a preponderance of the evidence, USCIS can exercise its discretion to approve an EB-2 NIW green card for you.
Applying for a NIW
Don’t be fooled into believing an approval is straight-forward. There are many people applying for this visa category now and your case will need to stand apart from hundreds of other applicants. Certain fields of endeavor are favored over others. Our office will spend a great deal of time on your letters of support and developing strong legal arguments to increase your chances of approval. We stay abreast of trends in adjudications and immigration agency liaison to best represent you.
CAVEAT: Our office often consults with individuals who have been convinced they should apply for the NIW. They have been told by others that they should apply for an NIW with the Adjustment of status so they can get a work permit (this is possible when an EB2 visa is immediately available).
However, what they were not told is that their cases were not strong and the risks involved in applying for an immigrant petition with adjustment of status if denied. If you apply for the NIW with adjustment of status and do not maintain some other nonimmigrant visa status throughout the process, you will have no status to fall back on if your case is denied. You and your family could even wind up in removal proceedings. In the future, you may be unable to obtain another nonimmigrant visa because you will have shown that you desire to live in the USA permanently.
There are ways to avoid this scenario but there are no short cuts. Unfortunately, some immigration “help” does more harm than good. We take pride in our client’s success. You can count on an honest assessment and feedback from start to finish. A few cases are very strong from the beginning.
Others may not be but may be developed with our assistance. Finally, some will just not qualify. Rest assured though that we will try to help you find the path to the green card that will work.
Contact our EB2 immigration attorneys in Orlando
Feel free to contact our Immigration attorneys in Orlando, to determine if you qualify for the EB-2 National Interest Waiver and what steps are necessary to apply. Maud Poudat and Suzanne E. Vazquez are certified as experts in immigration law by the Florida Bar and have a lot of experience in this area. We can be reached during office hours at (407) 674-6968. If you have an emergency after office hours please call us at (407) 925-2554 and we will contact you shortly.
