A: EB-2, or EB2, refers to the employment-based second preference classification under the United States Immigration and Nationality Act.
Q: What kind of foreign nationals are qualified for EB-2?
A: To qualify for EB-2, the foreign national must be granted a U.S. advanced degree, which is a Master’s Degree or higher, or its equivalent. Or the foreign national must be an alien of exceptional ability in the sciences, arts, or business if he or she does not have an advanced degree.
Q: What are the normal requirements and procedures for a foreign national to apply for a green card under EB-2?
A: Normally for a foreign national to apply for a green card under EB2, he or she must first find a U.S. employer who would offer him or her a job and be willing to file a labor certification (or “PERM”) application with the Department of Labor (DOL). The purpose of the PERM is to certify that there are no able, willing and qualified U.S. workers available in the job market to perform the skills that the foreign national would perform for the employer in such a position. After DOL approves the PERM application, the employer will have to file a visa petition with USCIS. This petition must establish that the employer has the financial ability to pay the foreign national under the requisite wage level and that the foreign national has the minimum requirements for the job position offered. After the visa petition is approved, and the immigrant visa becomes available to the foreign national under the EB2 category, the foreign national and his or her qualifying relatives may apply for adjustment of status in the United States or consular process overseas. Once the adjustment of status application or consular process application is approved, the foreign national will obtain the green card and complete the procedures for green card application. Because both the PERM application and subsequent visa petition must be signed by an employer, it is generally required to have a job offer by an employer before the foreign national can proceed with an EB2 green card application.
Q: What is EB2 NIW?
A: NIW stands for National Interest Waiver. NIW is an exception to the general EB2 immigrant visa petitions in which a job offer and employer-sponsored PERM application are required. Foreign nationals do not need a job offer or a labor certification to file NIW petition. The term “Waiver” refers to the waiving of the job offer and PERM application requirement in the immigration process.
Q: Do I need an employer to sponsor my NIW petition?
A: The short answer is no. Employers can file NIW petitions for foreign national employees. Foreign nationals may also file NIW petitions without sponsorship from employers. Therefore, you do not need an employer to sponsor you. You can file a self-petition NIW.
Q: Who are the parties involved in an NIW petition?
A: Typically, there are two parties in an immigrant visa petition: petitioner and beneficiary. The petitioner is the person, organization or employer in the U.S. filing the immigrant visa petition for a foreign national. The beneficiary is usually the foreign national for whom the particular immigration benefit is sought in the petition. In an NIW petition filed by an employer, the petitioner would be the employer and the beneficiary would be the foreign national. In a self-petitioned NIW, both petitioner and beneficiary would be the foreign national.
Q: What are the minimum requirements to file an NIW petition?
A: The beneficiary of an NIW petition must qualify as either an “Advanced Degree Professional” or an “Alien of Exceptional Ability”.
Q: What is an Advanced Degree Professional?
A: “Advanced Degree Professional” means that the beneficiary either has a U.S. advanced degree such as a Master of Arts, Sciences, Education, MBA, J.D. or Ph.D., or its foreign equivalent.
Q: I only have a bachelor’s degree. Can I file an NIW petition?
A: Yes, you can file an NIW petition even though you only have a bachelor degree so long as you have five years’ progressive experience in a professional or occupation at the time of filing the petition and you establish additional requirements for NIW.
Q: I do not have a bachelor’s degree. Can I file an NIW petition?
A: Yes, so long as you can satisfy the requirements of Alien of Exceptional Ability in the sciences, arts, or business. According to the Federal Regulations, Alien of Exceptional Ability means an alien who demonstrates exceptional ability in the sciences, arts, or business, through at least three (3) of the following:
- An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
- Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
- A license to practice the profession or certification for a particular profession or occupation;
- Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
- Evidence of membership in professional associations; and/or
- Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
Q: Will my petition be automatically approved if I can establish that I have an advanced degree or I am an alien with Exceptional Ability?
A: No. An Advanced Degree or Alien with Exceptional Ability is just the minimum requirements for NIW petition. You must satisfy another set of higher requirements to secure an approval.
Q: What are the other requirements for NIW?
A: According to In re New York State Department of Transportation (NYSDOT), AAO’s precedent decision in NIW, you have to prove three elements in your NIW petition. First, you have to show that you seek employment in an area of substantial intrinsic merit; second, the proposed benefit must be national in scope; and third, you will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.
Q: What does an area of substantial intrinsic merit mean?
A: This is the first element an NIW petitioner has to establish under NYSDOT. This is an element that can be easily satisfied. So long as the petitioner is employed as a professional, the USCIS will always make a finding that the petitioner has satisfied this requirement by being employed in an area of substantial intrinsic merit.
Q: What kind of prospective benefit would be considered national in scope?
A: This is the second element a petitioner has to establish under NYSDOT to have the NIW petition approved. Particularly, Petitioner has to show that the prospective benefit brought by his future employment must be national in scope, and the benefit cannot be at local, state, or regional level. This element may be readily provable to those scientific or academic researchers whose research can bring benefit to the nation. It does pose a challenge to some professionals whose jobs would only focus on a local benefit, such as school teacher, or lawyer who confines the practice only within the state. We strongly suggest that you contact us for a free evaluation to get our opinion regarding your eligibility for NIW petition.
Q: How can I satisfy the third element under NYSDOT for my NIW petition?
A: First and foremost, please consult with our office or a licensed immigration attorney to explore the eligibility and effective ways to present your case on this issue. Pursuant to NYSDOT, the ultimate test is whether an NIW Petitioner can “persuasively demonstrate that national interest will be adversely affected if the labor certification process were required for the alien”. There are at least two national interests involved in each NIW petition. One of them is the national interest of protecting the job opportunities to U.S. workers with minimum qualifications as alien, which can be secured by requiring the alien to go through the DOL’s labor certification process. The other national interest is the benefit brought by the alien seeking the approval of NIW petition. The alien must demonstrate that the national interest brought by him or her would outweigh the national interest of protecting U.S. worker’s job opportunity so much that requiring him to undergo labor certification process would adversely affect the national interest he or she would bring to the U.S.
Q: Do I need to have received any nationally or internationally recognized awards in my field to file an NIW petition?
A: No. You do not need to receive awards or prizes to file NIW petition, though receipt of such awards or prizes may increase the chances of your petition being approved.
Q: Do I need to be a member of any professional association or organization to file an NIW?
A: No. You do not have to be a member of any professional association or organization to file an NIW petition, though membership based on outstanding achievements may help improve the chance of approval.
Q: I have never been invited to review or judge the publications by peers. Can I file an NIW petition?
A: Yes, you can. You do not have to have the experience as a judge or scientific paper reviewer to file NIW petition, though such experience may establish your impact or influence in your field and enhance the chance of approval.
Q: I am currently pursuing my Ph.D., can I file an NIW petition at this time?
A: Yes, you can. You do not have to wait for graduation to file. Because a job offer is not required, you can file an NIW petition as a Ph.D. student, provided you have sufficient documents to establish the requirements for the NIW petition. We suggest that you contact us for a free evaluation of your eligibility for an NIW petition.
Q: I am an F-1 student pursuing my Ph.D. Can I file an NIW petition now or I should wait until after graduation when I find an employer and change my visa to H1B?
A: You do not have to wait until you find an employer to file NIW petition. If you satisfy the minimum requirement (Master’s degree or higher), and you have documents to establish that you have made significant benefits in the national interest field, you can file your NIW petition now. Please contact us for a free evaluation of your case.
Q: I am a J-1 visa holder subject to the two-year foreign country residency requirement. Can I file my NIW petition now?
A: Yes, you can file an NIW petition first and obtain an earlier priority date. While your NIW petition is pending, you can work on your J waiver. You must have the J waiver at the time you file your adjustment of status application in the United States. You do not have to have the J waiver approved before filing the NIW Petition. For a free evaluation of your NIW petition, please contact us.
Q: What kind of documents should I submit to support my NIW petition?
A: There are two categories of documentation you should prepare to file with USCIS to support your NIW petition. The first category is objective documents about your basic qualifications and significant achievements in the field of your endeavors. These documents should include degree certificates, the copy of reward certificates, copy of scholarly articles written by you, or list of citations to your publications, etc. At the same time, you must include subjective documents in the form of a letter of recommendations from experts in the field to support your case.
Q: What is a letter of recommendation?
A: Letters of recommendation are also called reference letters. It is a letter written and signed by an expert in the same field as yours to attest your claim that the national interest will be adversely affected if you were required to undergo the labor certification process.
Q: What should be included in the letter of recommendation?
A: A letter of recommendation should be addressed to the USCIS adjudication officer, provide the name, address and title of the recommender and expressly indicate the author’s favorable position in support of the applicant’s NIW petition. It should also include the following:
- General introduction of the writer’s background and qualification to provide the attestation: in this portion of the letter, the author should describe his or her background in the field of expertise, such as their employment history, scientific publications, rewards or prizes awarded, and membership to the organization or association that needs outstanding achievement, etc. This part should be a summary of the writer’s C.V. to demonstrate the writer’s qualification to provide an advisory opinion in Petitioner’s NIW petition.
- A brief description of how the author knows the petitioner: the author must indicate in the letter how he or she met the petitioner and under what circumstances the author agreed to write the letter.
- Explanation as to why the Petitioner would serve the national interest to such a greater extent that the national interest would be adversely affected if the Petitioner is required to undergo a labor certification process with the Department of Labor. This is the key part of the letter for an NIW petition. The author has to clearly demonstrate how the Petitioner has made an impact in the field as a whole. The author cannot simply repeat the language of the regulation or NYSDOT, nor can he or she just list the qualifications, unique skills or background the Petitioner possesses. Letters containing nothing but conclusive statements without concrete examples of the Petitioner’s influence in the field as a whole will carry little evidentiary weight. In summary, the author must describe in a detailed manner how the Petitioner or Petitioner’s professional endeavors in the field have made a sufficient impact to warrant a favorable finding in the NIW petition.
Q: Whom should I contact to obtain letters of recommendation?
A: You should be very prudent in selecting persons writing letters of recommendation for you. Though it is easy to have persons close to you, such as your colleagues, classmates, co-authors, advisors or even personal acquaintances write letters of recommendation for you, the probative value of such letters in supporting your NIW petition will be substantially undercut as the USCIS adjudicators would consider letters from such persons partial. On the other hand, letters from independent, objective individuals such as third parties who can show your influence in the scientific or requisite field can be very persuasive in supporting your position.
Q: I know a scientist who won the Nobel Prize, will my NIW petition be automatically approved with a reference letter from him?
A: No evidence or documentation can guarantee an automatic approval of NIW petition. A letter from a Nobel Laureate will definitely enhance the Petitioner’s chances of approval, but only if it is a letter describing the influence of the Petitioner’s innovation, discovery or scientific methodology. On the other hand, such a letter will carry little weight if it indicates that the author has been solicited to comment on the petitioner’s work based on the review of his publications and C.V.
Q: How many letters of recommendation should I submit?
A: You should prepare four to seven letters of recommendation for your NIW petition.
Q: How many letters should be from independent or objective parties?
A: The more, the better. Or you should prepare at least three letters from independent referees.
Q: If I retain your office, will you draft the letters of recommendation for my case, or I have to draft them myself?
A: We can draft the letters for you. After being retained, we will discuss with you in detail the strategy on how to present your case before USCIS. Once you have determined which particular scholars or professionals you would like to solicit the letters for support, we can assist you in one of two ways. First, you can provide us with the writer’s qualifications, background, working relationship with you and how he or she would evaluate the impact you made in the field. We will draft the reference letter for you after we obtain the above information in writing. Or with your authorization and this person’s written consent of writing you a letter, we can communicate with the person to collect the necessary information on your behalf and draft the letter of recommendation. Once we finish drafting the letter, we will send the draft to you or the person for possible or necessary revision before it is finalized for the signature.
Q: I am an artist or musician. Can I apply for green card through NIW?
A: Yes, you can file an NIW petition based on the fact that you are an artist or musician so long as you can establish the advanced degree or alien with exceptional ability requirement and meet all the requirements for NIW under NYSDOT.
Q: I have some publications, but they have not been highly cited. Can I apply for a green card through NIW petition?
A: Yes, you can. A foreign national may demonstrate his or her influence in the field by showing the independent citations to the scientific publications he or she authored or coauthored. However, this is not the only way to establish the alien’s influence or impact. Petitioners can always demonstrate their influence or impact in the field through other ways by submitting relevant objective and subjective documents. In the past, our firm has successfully represented clients with a moderate number of citations to their publications, or even without publications and citations, to secure approvals to their petitions. Little or no citations should not prevent you from filing NIW petition. Because each NIW petition is different, USCIS adjudicates petitions on a case-by-case basis depending on the documentation the petitioner presents. Therefore, we strongly suggest that you consult with the Law Offices of Yongbing Zhang if you intend to pursue an NIW petition.
Q: I am a social scientist. Can I apply for a green card through NIW petition?
A: Yes, you can, presuming you are either an advanced degree professional or an alien with exceptional ability.
Q: I note that AAO’s decision in NYSDOT talks about a prospective benefit. Does that mean USCIS will make a decision on my NIW petition based solely on my future achievement?
A: No. Only focusing on an alien’s prospective or future benefit to the national interest will not secure the approval of the petition. On the contrary, it could lead to the denial of your NIW petition. The documentation presented by the petitioner in the NIW petition must demonstrate a previous achievement, influence or impact in the field to project the future benefit to the national interest. Thus, your previous accomplishments that have impacted the field are very important to your NIW petition.
Q: I plan to file EB-1 petition with USCIS; will filing EB-1 petition bar me from filing an NIW petition?
A: No. Filing an EB-1 petition will not bar you from filing an NIW petition. Accordingly, filing an NIW petition will not bar you from filing an EB-1 petition. You can file both EB1 and NIW petitions with USCIS, as some foreign nationals have and had both approved. If you are eligible to file both an EB-1 and NIW, we strongly recommend that you file both petitions if you can collect enough evidence to support each. Our firm is experienced in representing foreign nationals in filing both EB-1 and NIW petitions. Please contact us to find out whether you should file both EB-1 and NIW petitions at the same time.
Q: What is the difference between the EB-1 petition and NIW petition?
A: EB-1 refers to employment-based first preference immigration petitions. There are three kinds of petitions under EB-1. EB-1A is the petition for the alien with extraordinary ability. EB-1b is the petition for outstanding research and professor. EB-1C petitions are for executives or managers of multinational corporations. For detailed information about EB-1, see here. The EB-1A petition is similar in some respects to the NIW petition. For example, both petitions can be filed by aliens themselves without the sponsorship of the employer or a job offer. The difference is that EB-1A holds a very high standard and is defined for those who are at the very top of their academic or business field. EB-1A petitions are subject to very strict scrutiny by USCIS. NIW petitions are employment-based second preference petitions, which only require the petitioner to establish some degree of influence in their field.
Q: What form do I use to file NIW petition?
A: Form I-140 is the form for the NIW petition. In addition to that, you also need to file Form ETA 750B.
Q: Where do I file my NIW petition?
A: Depending on where you reside in the United States, you will file the NIW petition at the Texas Service Center or Nebraska Service Center.
Q: How do I file my NIW petition?
A: You can file the petition electronically first, then submit your supporting documents after USCIS has directed you to do so. Or you can file the entire petition package (petition and supporting documents) by sending it directly to the requisite USCIS Service Center.
Q: How long will it take USCIS to adjudicate my NIW petition?
A: According to USCIS Service Center processing information, the adjudication time for NIW petition at Nebraska Service Center is four months, and the processing time at Texas Service Center is around nine months. For detailed information, please click here.
Q; Is premium processing service available for NIW Petitions?
A: No. Premium processing service is not available for NIW petitions.
Q: What will happen after I submit my NIW petition?
A: After submitting your petition, USCIS will send a receipt notice confirming its receipt of your petition. This usually arrives within a few weeks of filing your petition. After the receipt notice, USCIS will send you or your attorney a second correspondence. This can either be an approval notice or a Request for Evidence (RFE) notice. An approval notice means you have established your eligibility under employment-based second preference, and you and your qualifying relatives can move on to file an adjustment of status application (I-485) once the visa becomes available. An RFE means that USCIS has found the documentation you submitted with your petition insufficient to establish your eligibility. You must provide the additional documents requested in the RFE within the designated time frame (usually around 12 weeks) to resolve the insufficiency.
Q: What should I do if USCIS issues a Request for Evidence in my NIW petition?
A: RFE is effectively a notice of intent to deny. If you have hired an attorney to handle your petition, you should work with your attorney to find out what kind of documents you should submit to respond RFE. If you have not hired an attorney, we strongly suggest that you consult Law Offices of Yongbing Zhang or a licensed immigration attorney experienced in NIW petitions and discuss a plan to respond the RFE.
Q: My NIW petition is approved, what am I supposed to do now?
A: Approval of your NIW petition will not get you green card automatically. You still have to take one more step to obtain your green card. You have to either file an adjustment of status application with USCIS if you are physically in the United States or start the consular process at National Visa Center if you are outside the United States. If you have filed your adjustment of status application concurrently with your NIW petition, then you do not have to do anything but wait for USCIS decision regarding the adjustment of status application. If you have not done the concurrent filings, you have to first check out the most recent visa bulletin to make sure that immigrant visa numbers under the EB2 category for applicants from your home country are available. If you are a foreign national born in China or India, you most likely will not be able to file adjustment of status or consular process application at the time of NIW approval because China and Indian applicants are subject to lengthy waiting time for visa availability under the EB2 category.
Q: Can I file NIW petition and I-485 application concurrently?
A: It depends on your birthplace. In recent years, there has been a significant visa backlog for employment-based second preference (EB2) applicants from China and India. However, applicants from other countries have not faced any visa backlog under the EB2. These foreign nationals may have a choice of filing concurrent I-485 applications while filing the I-140 petition, as they do not have to wait for their visa to become available.
Q: What are the pros and cons of I-140/I-485 concurrent filings?
A: The benefit of concurrent filings is that you, your spouse and children born outside of the U.S. can enjoy such immigration benefits as Employment Authorization (EAD) and Advance Parole (travel document) while your I-485 applications are pending with USCIS. The drawback to concurrent filing is that if your I-140 NIW petition is denied, your I-485 will also be denied. This will result in revocation of your already approved EAD and Travel document and the $1070 adjustment of status filing fee for each applicant will not be refunded.
Q: My employer already started the PERM process for me. Can I file an NIW petition?
A: Yes. You have an option of filing NIW self-petition. One downside of the PERM process is that the case is controlled by all other parties, rather than the foreign national him or herself. The PERM application can be time-consuming on the employer’s end and also requires extra time for the Department of Labor to process. Sometimes, it is not guaranteed that the PERM can be filed timely after recruitment. Other times, a PERM application may be hit by an audit from the Department of Labor, which may eventually lead to a denial. This requires the entire process to start from the beginning once again. By this time, months or even years have passed, and there is no concrete progress in your immigration process. The benefit of the NIW petition is that you can control your own petition process. All you have to do is consult a licensed, experienced immigration attorney to understand the legal requirements, then prepare objective documentation and find experts who agree to attest to your impact or influence in your field by signing letters of recommendation. Once you have all the documents ready, you can file the case with USCIS right away.
Q: What kind of services does your firm provide if I hire you to work on my NIW petition?
A: If hired, our firm will provide the following services:
- Answer all the questions you have regarding your NIW petition;
- Direct, advise and counsel you to prepare the necessary evidence and documentation supporting your petition;
- Collect sufficient information from you regarding the area of your expertise and the background of the persons who would provide letters of recommendation for your NIW petition;
- Draft, revise, amend or proofread the letters of recommendation;
- Draft a comprehensive petition letter in support of your NIW petition;
- Complete all the required forms based on the information you provide with us;
- Organize the petition package and file it with USCIS service center;
- Monitor and keep track of your petition, and follow up with USCIS regarding the progress of the adjudication if necessary; and
- Work with you to collect, draft, prepare and file additional evidence or documentation to respond to USCIS Request for Evidence if necessary.
Q: What can I do if my NIW petition gets denied by USCIS?
A: Depending on the strength of your NIW petition, you can choose one of two options after your NIW petition is denied. First, you may appeal the denial to the Administrative Appeals Office (AAO) of USCIS in Washington, DC for review of the Service Center’s decision. You will have 30 days to file such appeal. Once an appeal is filed, the Service Center will review the appeal first and treat it as a motion to reopen/reconsider. If they agree with your position, they may withdraw the denial and enter a new decision approving the NIW petition. If the Service Center does not agree with your position, it will transfer your case to AAO for further review. Second, you can always file another NIW petition with a new set of evidence indicating your increased influence in your field. If the circumstances surrounding your academic development or scientific research have substantially changed since your submission of first NIW petition, such as dramatic increase of independent citations to your publications, or additional applications of your patents by other institutions, you should file a new NIW petition based on the new documentation. Although you must disclose the denial of your previous NIW petition in any subsequent petitions, USCIS will not deny a new NIW petition only based on the previous denial. Additionally, USCIS is required to review your entire petition package and make a decision based on the new set of evidence provided. If the evidence you submit for the second petition has clearly established your eligibility, USCIS must approve the petition despite the previous denial.
Q: What is the procedure to retain your firm as my attorney to work for my NIW petition?
A: 1) Please contact us by filling out the online questionnaire and attach your comprehensive curriculum vitae to obtain a free evaluation by one of our experienced attorneys;
2) One of our attorneys will contact you and provide you with a free assessment of your case;
3) If we believe you are eligible for EB2 NIW, and your petition stands a decent chance of being approved, we will send you a fee agreement;
4) You may agree to engage our services by signing the fee agreement and paying the first half of the legal fee;
5) The attorney will sign the fee agreement and send a copy of the agreement back to you, establishing the attorney-client relationship;
6) Your attorney prepare and send you a list of requested documents, which will be specifically tailored to your background and credentials. You will also be asked to fill out the general questionnaire;
7) You will send all the documents to the attorney, including all the information (name, job position, employer name and address, background, etc.) on the experts who are willing to provide letters of recommendation;
8) Your attorney will draft the letters of recommendation and send to you or the experts for signatures;
9) Your attorney will draft the petition letter, and our office will prepare and organize the package for submission;
10) We will file the petition package with USCIS Service Center and notify you upon receiving the receipt notice from USCIS;
11) We will notify you upon USCIS’ approval of your petition, completing our representation;
12) alternatively, we will notify you upon receiving USCIS RFE notice and work with you, which may include but is not limited to, providing a list of additional documents based on RFE notice, drafting additional letter of recommendation if necessary, preparing and organizing the response package, and filing the response package prior to the deadline;
13) notify you upon receiving the approval notice of your NIW petition, marking the completion of our service at that time.
Q: I see that your office is located in Chicago, Illinois, I live in Anchorage, Alaska. Can you represent me as my attorney in my NIW petition?
A: Yes, even though you are in Alaska, we can still represent you in your NIW petition. United States immigration law is federal law. Any attorney admitted to a federal court can practice federal law nationwide. Therefore, you can hire an attorney who does not have an office or practice in Alaska to represent you in your immigration matters. The Law Offices of Yongbing Zhang regularly takes cases from other states and even outside the United States.
Q: How much is your firm’s legal fee for NIW petition?
A: We charge a flat fee of $4,500.00 for an NIW petition. Upon signing the fee agreement, the client must pay the first half of the $4,500.00 fee; the remaining half of the $4,500.00 will be due upon the approval of the NIW petition. There is no additional legal fee for the service of responding to RFE notice. For each case, we also charge an additional $150 case processing fees for the costs of printing, mailing and case management. In addition to the legal and case processing fees, clients are also responsible for the filing fee to the government for each petition. Click here for a copy of our NIW petition fee agreement.
Q: How much is the government filing fee for NIW petition?
A: Currently, USCIS filing fee for NIW petition is $580.00. The petitioner must pay this amount of filing fee at the time of filing. The filing fee is subject to change in the future by USCIS. The petitioner will not be able to get the refund of filing fee from USCIS if the NIW petition is denied or withdrawn.
DISCLAIMER: Please be advised that the above information is only provided for educational purposes and to assist in the general understanding of United States immigration law. This should not be construed as professional legal advice or services. We strongly suggest you contact a licensed, experienced immigration attorney to advise you on your case. If you would like to have a free evaluation of your petition from the Law Offices of Yongbing Zhang, please follow the directions above.