Do I qualify for the EB-2 NIW?
The new qualifications for the EB-2 national interest exemption caused a surge in popularity. This has been in part for the 2016 Dhanasar Materia decision. In this case, 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 and permanent job offer and a labor certification from the Department of Labor (DOL). However, an NIW allows the USCIS to waive the job offer requirement if the applicant (1) is a member of the professions holding advanced degrees; or (2) has “exceptional ability” and “will substantially prospectively benefit the national economy, cultural or educational interest, or well-being” of the United States.
How has the NIW category changed?
The Immigration Act of 1990 that codified the “national interest” left it almost undefined so that this test could be as flexible as possible. Before Dhanasar, the USCIS often issued confusing and inconsistent decisions that made it difficult to predict the outcome of an EB-2 NIW petition.
It was here that the Matter of Dhanasar case changed the course of the EB-2 NIW petitions. The AAO provided clearer guidelines for meeting the national interest waiver standard. Now, the USCIS can grant an NIW if it shows, by a preponderance of the evidence, that:
- The proposed field to be undertaken has both substantial merit and national importance. It is well positioned to advance in the proposed field. That, on balance, it would be beneficial for the United States to waive the requirements of a job offer and a labor certification.
- The proposed field to be undertaken has both substantial merit and national importance.
- It is well positioned to advance in the proposed field. That, on balance, it would be beneficial for the United States to waive the requirements of a job offer and a labor certification.
What qualifications make you stand out?
After meeting the basic educational requirement, you must show that you are exceptional. You may be on the right track if you have done something that lowers production costs, developed a new idea or offered a new product or service. You must provide letters of recommendation. It should also show that others want your service, product, or idea.
Myths for qualifying for the EB-2 national interest waiver
Many people come to us convinced that they qualify for an EB-2 National Interest Waiver based on misinformation they read or heard. They hear stories from friends who ran as “accountant” or “engineer.” This friend obtained a work permit, a social security card, and a travel authorization. Now they are waiting for the green card. The client thinks her situation is similar and that, if the friend qualifies, he or she also.
Make no mistake, applying for a national interest waiver is no easy task. Right now, under the current government Administration, it is probably the most difficult time to get it. Unfortunately, misinformation about the NIW is causing people to spend time and money on something they don’t qualify for. There are too many immigration service providers who are not qualified and who guarantee results only to sell people false hope. This is a problem that slowly begins to unravel as more and more applicants are denied.
Here are the top 3 myths about EB-2 NIW qualifications:
Myth 1: is a college degree enough?
A college degree alone is not sufficient for the EB-2 national interest waiver. A degree simply satisfies the educational requirement. An applicant with a bachelor’s degree and more than 5 years of experience or an advanced studies degree alone will likely be denied. The NIW specifically requires much more than just a degree and experience.
Myth 2: is it enough to have a job in a qualified field?
Previous work experience alone will not be sufficient to obtain your national interest waiver of a job offer and labor certification. You must have other achievements. The work you do and what you have to offer must be of interest to the United States. You need to prove your credentials and experience. Substantial evidence from others is required to show that you are one of the best in your field.
Myth 3: does having a work permit mean my EB-2 NIW petition will be approved?
If you are in the US, you can apply for the EB-2 NIW with adjustment of status. In this way, the EB-2 NIW application and the application for adjustment of status will be adjudicated concurrently. An employment authorization and a travel permit are also applied for jointly. Applications for employment authorization and travel permission are processed and approved first. You will obtain a work permit, social security card, and travel authorization before making a decision on your EB-2 NIW petition.
Note that USCIS may still deny your request for an EB-2 National Interest waiver. You must take into account this possibility and the consequences of a letter denying your request. USCIS will send you a letter informing you why you were rejected and will cancel your work permit. They will give you about 30 days to leave the country. You can avoid this only by requesting the EB-2 NIW request without adjustment of status. You should have this conversation with your attorney to decide if it is right for you.
Talk to an immigration attorney
Experienced immigration attorneys
There are too many immigration service providers who claim to have a secret formula for success. They often call themselves “immigration consultants” or “CEOs” who specialize in immigration. These are not lawyers and they are on the internet peddling false hopes. They will tell you that you qualify for the EB-2 NIW after a quick consultation. Most of them make promises that they cannot keep.
Above all, immigration to the United States is a long and difficult process. There is nothing wrong with obtaining information from multiple sources. However, they must be reliable. You should be careful of guarantees and promises that sound too good to be true. We cannot stress the importance of this enough. Ethical attorneys make no guarantees about results. A good attorney will help you make an informed decision.
Terra Immigration is an Orlando, Florida-based law office with experienced immigration attorneys. You can call us at (407) 818-1244 or send us a message here if you need an honest assessment of your EB-2 national interest waiver qualifications. We speak English, Spanish and Portuguese.