EB-2 National Interest Waiver Qualifications:  Why It Is Not For Everyone

The new EB-2 National Interest Waiver qualifications caused an uptick in its popularity.  This has been in part to the 2016 decision Matter of Dhanasar. 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, permanent job offer and a labor certification from the Department of Labor (DOL).  However, a NIW allows USCIS to waive the job requirement if the applicant (1) is a member of the professions holding advanced degrees; or (2) has “exceptional ability” and will “substantially benefit prospectively the national economy, cultural, or educational interest or welfare” of the United States.

How has the NIW Category Changed?

The Immigration Act of 1990 that codified “national interest” left it mostly undefined so that this test could be as flexible as possible.  Before Dhanasar, USCIS often issued confusing and inconsistent decisions making it difficult to predict the outcome of an EB-2 NIW petition.

This is when Matter of Dhanasar changed the course of EB-2 NIW petitions.  The AAO provided clearer guidelines to the national interest waiver standard.  Now, USCIS may grant a NIW if you show, by a preponderance of the evidence, that:

  1. The endeavor you propose has both substantial merit and national importance.
  2. You are well-positioned to advance the proposed endeavor.
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and a labor certification.

Qualifications that 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 decreases costs, developed something new, or if you offer a new product or service.  Next, you should get letters of recommendation.   You should also show that others want your service, product, or idea.

EB-2 National Interest Waiver Qualification Myths

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 applied as “an accountant” or “engineer.”  This friend got a work permit, a social security card, and travel authorization.  They are now just waiting for the green card.  The client believes that if the friend qualifies, so does he or she.

Make no mistake – a National Interest Waiver is not easy.  Right now, under the current Administration, is probably the hardest time to get it.  Unfortunately, misinformation about the NIW is causing people to spend time and money on something for which they do not qualify.  There are too many unqualified immigration service providers making guarantees and selling people false hope.   This is a problem that is slowly starting to unravel as more and more people are getting denied.

Below are the top 3 myths about the EB-2 NIW qualifications:

Myth 1:  A qualifying degree is enough

A college degree alone is not enough for the EB-2 National Interest Waiver.  A degree just satisfies the educational requirement.  Someone with a bachelor’s degree plus 5 years of qualifying experience OR an Advanced Degree alone will probably get denied.  The NIW specifically requires a lot more than just a degree.

Myth 2:  Previous employment in a qualifying field is enough

Previous employment experience alone is probably not enough to get your national interest waiver of a job offer and labor certification.  You must have other achievements.  The work that you do and what you have to offer must be of interest to the United States.  You need to prove your credentials and experience.  It requires substantial evidence from others showing how you are one of the best in your field.

Myth 3:  A work permit means 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.   This way, the EB-2 NIW petition and adjustment of status application will be adjudicated concurrently.  You also apply for Employment Authorization and a Travel Permit.  The Employment Authorization and Travel Permit applications are processed and approved first.  You will get a work permit, a social security card, and travel authorization before a decision on your EB-2 NIW petition.

Note that USCIS can still deny your EB-2 National Interest Waiver petition.  You must be aware of this possibility and the consequences of a denial letter.  USCIS will send you a letter telling you why you were denied and will cancel your work permit.  They will give about 30 days to leave the country.  You can avoid this by only applying for the EB-2 NIW petition without adjustment of status.  You must have this conversation with your lawyer to decide if this is right for you.

Talk to an Immigration Lawyer

There are too many immigration service providers who claim to have a secret formula for success.  They often call themselves “immigration consultants” or “CEOs” that specialize in immigration.  These non-lawyers are all over the internet selling false hope.  They will tell you that you qualify for the EB-2 NIW after a quick consultation.   Most of them make promises they cannot keep.

Above all, immigration to the United States is a long and difficult process.  There is nothing wrong with getting information from multiple sources.  However, they must be reliable.  You must be careful with guarantees and promises that sound too good to be true. We cannot stress the importance of this enough.  Ethical attorneys do not make guarantees about outcomes.  A good lawyer will help you make an educated decision.

Terra Immigration is a law office based in Orlando, Florida 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.

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