Am I Qualified for an NIW Green Card?
Updated on 11/18/2023
Foreigners can qualify for green cards for many different reasons. One common category of green cards is green cards issued for employment reasons. Employment-based green cards are usually designated with the abbreviation, “EB”. One type of “EB” green card is an EB-2 green card. This article discusses how you can qualify for one form of an EB-2 green card – a “National Interest Waiver (“NIW”) green card.
What is an NIW green card?
To know what an NIW green card is, it is necessary to first understand the general structure of EB-2 green cards. There are two basic types of EB-2 green cards:
- “Advanced degree” EB-2 green cards. To qualify for an “advanced degree” EB-2 green card, the job you apply for must require an advanced degree and you must possess such a degree or its foreign equivalent (a baccalaureate or foreign equivalent degree plus five years of post-baccalaureate, progressive work experience in the field).
- “Exceptional ability” EB-2 green cards. To qualify for an “exceptional ability” EB-2 green card, you must be able to show exceptional ability (a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business) in the sciences, arts, or business.
Both “advanced degree” EB-2 green cards and “exceptional ability” EB-2 green cards generally are subject to the Permanent (“PERM”) Labor Certification process. A PERM Labor Certification is issued by the U.S. Department of Labor to permit an employer to hire a foreign worker to work permanently in the United States. The general purpose of the PERM Labor Certification process is to determine whether the hiring of a foreign worker would prevent an equally-qualified U.S. worker from obtaining a similar position. Because the PERM Labor Certification process can delay the adjudication of a green card application, it is considered beneficial if the green card applicant can waive the PERM Labor Certification process.
One such waiver of the PERM Labor Certification process can occur pursuant to an NIW green card. It is important to remember that the “W” in NIW green card refers to “Waiver”. An NIW green card applicant first meets the requirements of an “advanced degree” EB-2 green card or an “exceptional ability” EB-2 green card and then also waives the PERM Labor Certification process by meeting the specific requirements of an NIW green card. As such, an NIW green cardis not its own type of EB-2 green card, but rather an addition to an “advanced degree” EB-2 green card or an “exceptional ability” EB-2 green card.
How do I secure approval of an NIW green card petition?
The U.S. Immigration and Nationality Act recognizes the concept of a “national interest waiver”, but does not define the phrase.
Instead, it is U.S. Citizenship and Immigration Services (“USCIS”), in interpreting and enforcing U.S. immigration law, that has defined the meaning of a “national interest waiver”. USCIS has set forth (based on certain case law) a three-prong test to generally determine if an NIW green card petition should be approved. These three prongs are:
- The applicant’s proposed endeavor has both substantial merit and national importance;
- The applicant is well positioned to advance the proposed endeavor; and
- On balance, it would be beneficial to the United States to waive the PERM Labor Certification requirements.
USCIS may approve an NIW green card petition in its discretion if the applicant demonstrates eligibility under these three prongs by a preponderance of the evidence.
This article will now examine these three prongs, one by one.
First prong – Proposed endeavor has substantial merit and national importance
In explaining this first prong, USCIS views the term, “endeavor”, as more specific than the general occupation. The petitioner should offer details not only concerning what the occupation normally involves, but also concerning the specific types of work that the petitioner proposes to undertake within such occupation.
The endeavor’s merit may be demonstrated in areas including, without limitation, business, entrepreneurship, science, technology, culture, health, or education. While the potential significant economic impact of the endeavor may be considered, merit also can be established without immediate or quantifiable economic impact.
The national importance of the specific endeavor is reviewed by considering its potential prospective impact. USCIS advises its immigration officers to focus on the nature of the proposed endeavor, rather than only the geographic breadth of the endeavor. In determining national importance, immigration officers should focus their analysis on what the applicant will be doing, rather than the specific occupational classification. Classroom teaching, and similar endeavors, without broader implications for a field or region, generally do not rise to the level of having national importance.
Ultimately, if the evidence demonstrates that the applicant’s proposed endeavor has the significant potential to broadly enhance societal welfare or cultural or artistic enrichment, or to contribute to the advancement of a valuable technology or field of study, it may rise to the level of national importance.
Second prong – Applicant is well positioned to advance proposed endeavor
While the first prong focuses on the proposed endeavor’s substantial merit and national importance, this second prong is concerned with the applicant. In assessing whether the applicant is well positioned to advance the endeavor, USCIS considers factors including, without limitation, the following:
- The applicant’s education, skills, knowledge, and record of successin related or similar efforts;
- A model or plan that the applicant developed, or played a significant role in developing, for future activities related to the proposed endeavor;
- Any progress towards achieving the proposed endeavor; and
- The interest or support garnered by the applicant from potential customers, users, investors, or other relevant entities or persons.
The applicant should submit evidence to document the applicant’s past achievements and supportprojections related to the proposed endeavor showing that the applicant is well positioned to advance the endeavor. An applicant may be well positioned to advance an endeavor even if the applicant cannot demonstrate that the proposed endeavor is more likely than not to ultimately succeed (but unsubstantiated or implausible claims would not meet the applicant’s burden of proof).
USCIS has issued the following non-exhaustive list of the types of evidence that tend to show that the applicant is well positioned to advance a proposed endeavor:
- Degrees, certificates, or licenses in the field;
- Patents, trademarks, or copyrights developed by the applicant;
- Letters from experts in the applicant’s field, describing the applicant’s past achievements and providing specific examples of how the applicant is well positioned to advance the applicant’s endeavor;
- Published articles or media reports about the applicant’s achievements or current work;
- Documentation demonstrating a strong citation history of the applicant’s work or excerpts of published articles showing positive discourse around, or adoption of, the applicant’s work;
- Evidence that the applicant’s work has influenced the field of endeavor;
- A plan describing how the applicant intends to continue the proposed work in the United States;
- A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;
- Correspondence from prospective or potential employers, clients, or customers;
- Documentation reflecting feasible plans for financial support;
- Evidence that the applicant has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;
- Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;
- Letters from government agencies or quasi-governmentalentitiesin the United States demonstrating that the applicant is well positioned to advance the proposed endeavor;
- Evidence that the applicant has received awards or grants or other indications of relevant non-monetary support(for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and
- Evidence demonstrating how the applicant’s work is being used by others, such as, without limitation, (i) contracts with companies using products that the applicant developed or assisted in developing, (ii) documents showing technology that the applicant invented, or contributed to inventing, and how others use such technology, and (iii) patents or licenses for innovations the applicant developed with documentation showing why the patent or license is significant to the field.
USCIS advises its immigration officers to consider the totality of circumstances to determine whether the applicant has established that the applicant is well positioned to advance the proposed endeavor.
Third prong –On balance, beneficial to the United States to waive the PERM Labor Certification requirements
This third prong requires the petitioner to demonstrate that the factors in favor of granting the waiver outweigh those that support the application of the PERM Labor Certification process.
USCIS advises its immigration officers to assess whether the petitioner’s endeavor and the petitioner being well positioned to advance such endeavor, taken together, provide benefits to the United States such that a waiver of the PERM Labor Certification requirements outweighs the benefits that ordinarily arise from such requirements. For example, in the case of an entrepreneur applicant, where the applicant is self-employed in a manner that generally does not adversely affect U.S. workers, or where the applicant establishes or owns a business that provides jobs for U.S. workers, there may be little benefit from the PERM Labor Certification requirements.
In establishing eligibility for this third prong, applicants may submit evidence relating to one or more of the following factors:
- The impracticality of a PERM Labor Certification application;
- The benefit to the United States from the prospective noncitizen’s contributions, even if other U.S. workers were also available; and
- The national interest in the applicant’s contributions is sufficiently urgent, such as U.S. competitiveness in STEM (science, technology, engineering, and math) fields.
In addition, more specific considerations for this third prong may include (i) whether urgency, such as public health or safety, warrants foregoing the PERM Labor Certification process, (ii) whether the PERM Labor Certification process may prevent an employer from hiring an applicant with unique knowledge or skills exceeding the minimum requirements standard for that occupation, which cannot be appropriately captured by the PERM Labor Certification process, (iii) whether the applicant’s endeavor has the potential to generate considerable revenue consistent, for example, with economic revitalization, and (iv) whether the applicant’s endeavor may lead to potential job creation.
What do I file to obtain an NIW green card?
It is important to remember that an NIW green card is a form of EB-2 green card. Thus, as with other EB-2 green cards, the first step to obtain an NIW green card is to file Form I-140, “Immigrant Petition for Alien Workers” (“Form I-140”), with USCIS. For anNIW green card, you should check Box 1.h in Part 2 of the Form I-140. The filing fee for a Form I-1-140 is $700.
If the Form I-140 is approved by USCIS, the next step to obtain an NIW green card will depend on whether the applicant is then in the United States. If the applicant is abroad, the applicant will file Form DS-260, “Online Immigrant Visa and Alien Registration Application” (“Form DS-260”), to obtain the NIW green card through consular processing. The filing fee for a Form DS-260 is $345. On the other hand, if the applicant is in the United States and keeping a legal status, the applicant will file Form I-485, “Application to Register Permanent Residence or Adjust Status” (“Form I-485”), to obtain the NIW green card through adjustment of status. The filing fee for a Form I-485 generally is $1,140 (plus an $85 biometrics services fee for persons between 14 and 78 years of age). It may be possible to file the Form I-485 together with the Form I-140 under concurrent filing if the visa number is available to the applicant.
Concurrent filing can expedite the time that it takes to obtain an NIW green card. Another step that you can take to reduce the time that it takes to receive an NIW green card is premium processing. Under premium processing, USCIS will adjudicate an I-140 petition within 45 days. Premium processing of an I-140 petition is filed on Form I-907, “Request for Premium Processing Service”, and incurs a $2,500 filing fee. Unfortunately, neither consular processing nor adjustment of status can be expedited.
Frequently Asked Questions
- To obtain an NIW green card, do I need to qualify under both the “advanced degree” requirements for an EB-2 green card and the “exceptional ability” requirements for an EB-2 green card?
No. You only need to qualify under either one of the “advanced degree” requirements for an EB-2 green card or the “exceptional ability” requirements for an EB-2 green card, to obtain an NIW green card.
- What evidence do I need to submit to qualify for an “advanced degree-based” NIW green card?
USCIS will be looking for such documentationas an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least five years of progressive post-baccalaureate work experience in the specialty.
- What evidence do I need to submit to qualify for an “exceptionalability-based” NIW green card?
USCIS will be looking for at least three of the following criteria: (i) 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, (ii) letters from current or former employers documenting at least 10 years of full-time experience in your occupation, (iii) a license to practice your profession or certification for your profession or occupation, (iv) evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability, (v) membership in a professional association(s), (vi) recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations, and/or (vii) other comparable evidence of eligibility.
- Do I need a U.S. employer to sponsor me for an NIW green card?
No. Consistent with the concept that an NIW green card waives the PERM Labor Certification requirements, you can petition for an NIW green card on your own, and do not need a U.S. employer to sponsor you.
- How long should it take for me to obtain an NIW green card?
While every case is different, and thus it is difficult to state a time for every NIW green card application, the average processing time for USCIS to adjudicate an I-140 petition is between 6 and 15 months (less if premium processing (as described above) is sought). The average processing time for consular processing or adjustment of status ranges from 3 to 12 months. However, such processing time doesn’t include the visa waiting time yet. Thus, for applicants whose origin of countries has long visa waiting time, the total actual time to obtain a NIW green card is around 3-4 years.
- Can my family members obtain green cards if I am approved for an NIW green card?
Your spouse and unmarried children under age 21 may be able to obtain green cards if you are approved for an NIW green card.
Most persons would cite long delays as the biggest problem with the U.S. immigration system. As a result, anything that can accelerate the processing of immigration benefit applications deserves close attention. The NIW green card can achieve such a result, as by waiving the PERM Labor Certification process, an NIW green card can expedite the adjudication of an otherwise qualifying EB-2 green card application. If you are seeking an “advanced degree” EB-2 green card or an “exceptional ability” EB-2 green card, you should consider the NIW green card to qualify sooner for your green card.
If you have any further questions about your NIW green card, the eligibility criteria, or any other immigration concerns, please contact DYgreencard.com at 888-919-8555 or [email protected] or schedule an appointment online today. We offer a one-time free evaluation for NIW cases. We are here to help!
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