The EB-2 visa category generally allows those with advanced degrees or exceptional abilities to seek a visa in the United States. If you choose to apply under this category, you may need to go through an onerous process that requires seeking certification from the Department of Labor, which can add a considerable amount of time to your application. You may choose to apply under the EB-2 category and seek a national interest waiver, which can speed up your petition somewhat.
An experienced EB2 NIW lawyer at Hayoon Kane Law Firm, PLLC can assist you with your application and any issues that arise.
What Is a National Interest Waiver?
Many people who are seeking to apply for a United States employment-based visa need to have an employer sponsor them because there is a critical need. In this case, the Department of Labor will first need to certify that there are no available U.S. workers for the position and that hiring the applicant will not negatively affect the American job market. Not only is it far from automatic that the Department of Labor will issue the certification, but it will also add roughly a year to your application process.
As a foreign worker, you may want to apply on your own for a United States immigration visa without being sponsored by an employer. If you meet the requirements for a National Interest Waiver (NIW), you may be able to do so. You would be able to obtain an NIW when the work that you do is in the national interests of the United States.
How Can I Qualify for a National Interest Waiver?
The law does not explicitly define what it means for your work to be in the national interest of the United States. This fact gives USCIS some leeway when they are considering your application, but it also means that there can be some uncertainty.
Instead of giving a set definition, USCIS uses three factors that they will consider when you are applying for an EB2 NIW visa. The factors come from the case of the Matter of Dhanasar, and you must meet all three of them with compelling evidence for your petition to be approved.
These factors are as follows:
- Evidence That Your Endeavor Has Substantial Merit and National Importance – Here, you need to show the broader implications of what you are proposing to do, as opposed to how your endeavor will benefit one single and specific employer. To satisfy this prong, you must do more than just state your potential job duties; instead, showing the overall significance of what you do and how it may help the United States as a whole.
- Evidence That You Are Well-Positioned to Advance Your Endeavor – You must include proof that you are in a position to accomplish and provide the benefits that you claim to the United States. This proof can include both statements of your education and skills and a potential plan that you have to achieve your goals. For example, an advanced degree in your field can help prove to USCIS that you have the ability to provide benefits to the country.
- On Balance, It Would Be Beneficial to the United States to Waive the Job Offer and Thus the Permanent Labor Certification Requirements – You can show why it will be impractical for you to obtain the certification from the Department of Labor or how the country will still benefit, even if your admission can have a potential impact on the labor market.
How to Build a Strong Petition for an EB2 NIW Green Card
Your application for an EB2 NIW visa will be largely about you, but you will also need to include information about your field and why your presence in the United States will be within the national interest. First, you begin by including information about your background and skills that show why admitting you will be in the national interest. You may include the following as part of your application:
- Letters of recommendation from people who know you and are familiar with your skills
- Testimony of expert witnesses who can explain the importance of what you do and what you may be able to contribute to the national interest
- Proof of your own qualifications that can include education, certifications, and awards
- Evidence of your own professional track record to show that you are in a position to deliver on what you say
- Any further demonstration of why a waiver of certification requirements is in the national interest
In addition, you may also provide evidence about your industry to show why your specific skills are critical, and there may not be anyone who is in the position to provide them.
Reasons for Denial of an EB2 NIW
The approval rate for EB2 NIW visas ebbs and flows. In the past, it was somewhat easier to obtain an EB2 NIW visa, as the approval rate hovered around 80 percent. In recent years, USCIS has tightened its own standards for this type of visa, and the approval rate has correspondingly dropped. In FY 2024, the approval rate for an EB2 NIW visa fell to 43 percent. In addition, the backlog of these cases has risen sharply, as USCIS does not always have enough personnel to process all of the applications that they receive.
USCIS may deny an EB2 NIW visa for the following reasons:
- You have not provided sufficient evidence of the impact that you can make or your ability to follow through on what you have warranted.
- You do not have a feasible plan for what you hope to accomplish.
- There are inconsistencies in your application or background.
- You have a criminal record, or there are safety concerns about your application.
- You are being actively recruited by many companies, which makes it less likely that you will need a waiver.
- Your work will only benefit an employer, as opposed to society as a whole.
If your application has been wrongly denied, you may be able to file an appeal with the USCIS Administrative Appeals Office, although you may be fighting an uphill battle to win. This fact makes it even more important to get help from an EB2 national interest waiver immigration lawyer when you are filing your application, as opposed to waiting until you have a problem or you have received a Request for Evidence from USCIS.
How an EB2 National Interest Waiver Lawyer Can Help
When you hire an EB2 NIW lawyer, they can do the following:
- Assisting you to gather the documentation that you need to show that you qualify for a national interest waiver and that you are in a position to do what you have warranted in your application.
- Communicating on your behalf with USCIS
- Helping you respond when USCIS has sent you a Request for Evidence, meaning that they have some concerns about your application
- Representing you if you need to file an appeal with USCIS
Hopefully, your EB2 NIW visa will be your first entry into the country, and you will eventually apply for a green card and U.S. citizenship. An experienced immigration lawyer can represent you at every step of the way.
Contact an EB2 National Interest Waiver Immigration Lawyer Today
Reach out to Hayoon Kane Law Firm, PLLC, for all of your immigration law needs. When you are seeking to show that you qualify for a national interest waiver, we can help you put your best foot forward in the application process.
You can schedule a free initial case review with an EB2 visa lawyer by filling out an online contact form or by calling us today at (702) 463-7630. We have an office in Las Vegas, NV, and we represent clients throughout the country and overseas as part of our 50-state practice.
