Differences of EB2 and NIW Green Card

EB2 National Interest Waiver (NIW) applies to the second preference category of immigrant workers has to be backed by a definiteUSemployment offer and an approved labor certificate. Notwithstanding this fact, US officials may consider a National Interest Waiver if it can be established that the immigrant’s residency in theUnited Statesadds substantially to the labor market or the economy of theUS, referred to as “national interest”.

National Interest Waiver would also be considered if the immigrant’s services are requested from a government agency, or if it can be proven that employing the immigrant in theUnited Stateshas significant positive impact on the housing of US nationals orUSsustainability.

NIW application requires the tendering of Form I-140. It is entirely up to the applicant to show without a doubt how his presence is n the national interest of theUS. 

Differences between EB2 and EB2-NIW

1. Immigrant needs to be sponsored and applied for by aUSemployer Immigrant can put forward his own application
2. Employer needs to acquire aUSlabor certificate for the immigrant before completing Form I-140 Labor certification is waived due to “national interest

If the immigrant already has approved NIW, it is immaterial whether he is sponsored by aUSemployer. However, if theUSfirm is of notable repute, it would be advantageous to have such a company as the requester. Each application is judged individually, and NIW success depends on how the petition is presented.

What National Interest Waiver actually does is forgo the normal EB2 requirement of a labor certificate, but the standard prerequisites for second preference employment remain applicable. Under NIW, most visas are current, with just a couple of countries excepted.

The EB2 category refers to non-US nationals who have attained advanced degree or comparable qualification in professional areas i.e. arts, sports, sciences and medicine or the business industry. Degrees would be deemed “advanced” if they are above bachelor’s degree level. On the other hand, the immigrant may have achieved aUSbaccalaureate degree plus five years post graduate, progressive experience, along with the bachelor’s degree would also meet the educational obligation. Generally, bachelor’s degrees, along with five years’ experience only, are not acceptable standards for qualification under EB2.

There is no specific definition of the term “exceptional ability”. Past experience has found that it may refer to an immigrant who has achieved a qualification or related experience beyond what is the norm.

Professional qualification or special trade permit alone does not have any effect on exceptional ability. However, any combination of three of the below-mentioned below may be deemed exceptional ability:

  1. A professional scholarly award from an institute of higher learning
  2. Documented testimony of past employers attesting to the immigrant’s full time job experience of minimum 10 years in the specific position
  3. A special practitioner’s permit for the specific position
  4. Evidence that the immigrant’s exceptional ability has attracted a higher than normal remuneration package than is the norm for similarly aligned job roles
  5. Proof of membership in or association with a renowned professional body
  6. Testimony of  acknowledgement of outstanding performance or attainments in the field of expertise by professional bodies, other renowned scholars or peers

Outside of the above, USCIS will give consideration to any other similar evidence of exceptional ability as may be tendered in support of EB2 visas. The above combinations allows for athletes to be eligible for consideration of having exceptional ability.

Immigrants in the healthcare business need to acquire certification to qualify for EB2 category, regardless of whether they were trained in theUSor overseas. They would generally fall under EB2 advanced degree professionals or EB professionals/skilled workers. Such would include physical and speech therapists, doctors’ aides and medical laboratory technicians.

A non-US medical degree may be deemed as comparable to aUSmedical degree contingent on the following:

  1. The degree was granted from a medical teaching academy that requires q foreign bachelor’s degree equivalent to aUSbachelor’s degree in order to be admitted
  2. The immigrant’s foreign medical degree is accompanied by documents justifying how it its equal to aUSmedical degree
  3. the awarded foreign been passed by a body like the NBMEE or the USMLE

A foreigner who has met the basic EB2 prerequisites or who passes the NYDOT three-prong assessment may apply for NIW. If the foreign professional contracts to serve full time in a field assigned by the Department of Health where there is a need, or in aVeteransHospital, he may also apply for National Interest Waiver.

In considering NIW, as per In re New York State Department of Transportation, the USCIS taking a three prong approach, looks at area of substantial intrinsic merit, proposed benefit of national scope and significant to national interest.

a)      Area of substantial intrinsic merit – the job must be considered to be of intrinsic value to the welfare of theUS

b)      Benefit of national scope – beneficial to attaining, not just a local, but a national objective

c)      Significant to national interest – the nation’s interests are significantly affected by the immigrant professional’s services or lack thereof; the services of the immigrant would achieve more positive results for the nation than those of a US national and would have revolutionary impact on the field of interest as a whole

In support of (c) above, it would be best to tender:

  1. Incontrovertible evidence of past unusual accomplishments, pointing to track record of performance excellence.
  2. Detailed job description of the post to be filled. This would support the view that the especially talented non-national possesses what is needed to carry out the functions of the role.
  3. Testimonials from experts in the field that this position is a specialist one and can only be assumed by someone as qualified as the immigrant. These recommendations should also cite the qualifications of the recommender himself. There is no stated number of recommendations defined, however it is suggested that the minimum quantity be three.

For a medical practitioner to qualify for National Interest Waiver, he has to contract to work full time in a field (pediatrics, obstetrics, family medicine, psychiatry) and location so assigned by the Department of Health and Human Services for a cumulative total of five years. The doctor’s employment must be sanctioned by a government outfit. Statistics show that qualified medical students have an equal chance of being granted National Interest Waiver as a full-fledged practitioner.

Many have bolstered NIW application by showing a comparison between the immigrant’s resume and those of others in the same field, and as well as looking at past cases to show precedent.

NIW can be applied for completing Form I-140 and submitting it by email or post, but supporting documentation, along with related fees, has to reach. It is best to fill one form for each immigrant visa category for which one is applying.

If an applicant wishes to withdraw his NIW application, this can be done by letter from the petitioner or the Form G-28 representative. Be sure to state the Form I-140 receipt number and the name and contact details of the petitioner and/or beneficiary.

Should one change jobs during the NIW application process, in case of self petition, your matter will remain unaffected. But if a beneficiary was sponsored by an employer, then it is likely the petition process would have to be restarted.

F-1 student visa holders are not exempt from petitioning for National Interest Waiver, as long as there is no double intent upon initial immigrant visa applications. The situation may change, though, after the F-1 or J-1 permit has already been granted, and the USCIS recognizes this. Still, it is prudent to wait until the F-1 or J-1 non immigrant visa expires before petitioning for NIW.

Many are confused as to the difference between EB1-A and NIW. Well, the requirements and qualifications for each are entirely different. EB1-A dictates that the non-US national be of extraordinary ability; NIW does not mandate this. There is no restriction on applying for National Interest Waiver and EB1-A at the same time.

In case National Interest Waiver is denied, one can reapply at any time. However, it is advisable not to do so until one has satisfied the criteria of deficiency.


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