EB.2 National Interest Waiver (NIW)

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Overview

A National Interest Waiver (NIW) petition falls in the employment-based, second-preference (EB-2) immigration category. For most EB-2 applications, petitioners need a permanent job offer and an approved labor certification. However, an NIW requests these requirements be waived for the sake of the “national interest of the United States,” thus allowing an applicant to apply for this status without a labor certification or a job offer from a U.S. employer.

In order to be qualify for an NIW petition, a beneficiary or applicant must have an “advanced degree” or “exceptional ability” in the sciences, arts, or business. The beneficiary must also persuasively demonstrate that his or her proposed endeavor has both substantial merit and national importance; that he or she is well-positioned to advance this endeavor; and that it would therefore be beneficial to the United States to waive the standard requirements of a job offer and labor certification. While each NIW case is adjudicated on its individual merits, the burden of proof is always on the applicant or beneficiary to establish that exemption from labor certification will be in the national interest of the U.S.

Even if the beneficiary has no employer, he or she may file an NIW petition on behalf of him- or herself. Alternatively, a U.S. employer can file an NIW petition on behalf of an alien.

Eligibility Requirements

According to  USCIS, those seeking EB-2 visas and national interest waivers also need to demonstrate evidence of at least three of the following:

  • 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
  • Letters documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations
  • Other comparable evidence of eligibility is also acceptable

Outstanding Professor Researcher Immigrant Visa

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One of the lesser used paths to permanent residency (a “green card”) in the U.S. is that of an Outstanding Professor or Researcher. The Outstanding Professor or Researcher category is a subcategory under the Employment-Based First category. It is sometimes referred to as the EB-1(2) category.

Although the EB-1(2) category is used less often than other employment-based paths to permanent residency, it has several advantages over other categories, and should be considered whenever it might be applicable. First, the EB-1(2) category does not require labor certification, meaning there is no requirement that there be no U.S. workers who are unable or unwilling to fill the position. Second, as compared to other categories where a labor certification is not required, according to USCIS statistics, applications filed in the EB-1(2) category have a significantly higher approval rate (see https://www.uscis.gov/working-united-states/permanent-workers/approval-and-denial-statistics-i-140-immigrant-petition-alien-workers).

To establish eligibility for an immigrant visa as an Outstanding Professor or Researcher, the applicant must demonstrate that: (1) the applicant is recognized internationally as outstanding in a specific academic area; (2) the applicant has at least three years of experience in teaching or research in the academic area; and (3) the applicant seeks to enter the United States to pursue a “qualifying position.”

A qualifying position is one that is: (1) a tenure or tenure track teaching position; (2) a comparable research position at a university or other institution of higher education; or (3) a comparable research position with a private employer. To qualify for EB-1(2) eligibility based upon employment in a research department or division at a private employer, that employer must satisfy additional requirements, namely, the research department or division must employ at least three persons full-time in research activities, and must have achieved documented accomplishments in the field.

In addition to the employer satisfying the “qualifying position” requirement, the individual applicant must demonstrate international recognition as outstanding in the particular academic field. To satisfy this requirement, the applicant is required to submit documentation of at least two of the following criteria:

  • Evidence of receipt of major prizes or awards for outstanding achievement
  • Evidence of membership in associations that require their members to demonstrate outstanding achievement
  • Evidence of published material in professional publications written by others about the applicant’s work in the academic field
  • Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
  • Evidence of original scientific or scholarly research contributions in the field
  • Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field

Assuming the applicant is able to meet at least two of the evidentiary criteria, and if the applicant has a job offer for a “qualifying position,” the EB-1(2) immigrant visa category should be considered as a preferable alternative to the stricter extraordinary ability, national interest waiver, or the labor certification options.

EB.1. Exceptional Ability

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EB.1. Overview

An Alien of Extraordinary Ability, or EB-1A, classification applies to aliens who have distinguished themselves professionally in their fields of work or study. Notably, these employment-based, first-preference visa candidates do not have to secure sponsorship from an employer, as an EB-1A petition requires neither a job offer nor a labor certification.

Eligibility

Aliens residing in the U.S. or abroad are eligible to apply for this designation, provided they meet two general qualifications stipulated by U.S. Citizenship and Immigration Services (USCIS):

  • They are able to demonstrate “extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim,” and
  • This extraordinary ability is well-supported through “extensive documentation.”

A major, internationally recognized award like an Olympic Medal, Nobel Prize, or Oscar will suffice.

Other Eligibility Options

In the absence of such a rare honor, however, applicants can still demonstrate their extraordinary abilities, supported by extensive documentation, by meeting any three of the following 10 criteria:

  • Evidence of lesser nationally or internationally recognized prizes or awards for excellence.
  • Evidence of membership in associations in the field that demand outstanding achievement of their members.
  • Evidence of published material about the applicant in professional or major trade publications or other major media.
  • Evidence of participation by the alien as a judge, either individually or on a panel, of others’ work.
  • Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field.
  • Evidence of authorship of scholarly articles in professional journals or major trade publications or other major media.
  • Evidence of work that has been displayed at artistic exhibitions or showcases.
  • Evidence of having taken on a leading or critical role in distinguished organizations.
  • Evidence that the applicant commands a high salary or other significantly high remuneration relative to others in the same field.
  • Evidence of commercial success in the performing arts, as shown by either box office receipts or cassette, compact disc, video, or DVD sales.

In addition to fulfilling the above criteria, applicants must prove that they will continue to pursue work in the U.S. in the field in which they have demonstrated extraordinary abilities. To this end, they strive to show that their work is of substantial and prospective benefit to U.S. national interests.

Student Visas

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F-1 Student Visa

An F1 visa is issued to international students who are attending an academic program or English Language Program at a US college or university. F-1 students must maintain the minimum course load for full-time student status. They can remain in the US up to 60 days beyond the length of time it takes to complete their academic program, unless they have applied and been approved to stay and work for a period of time under the OPT Program

Optional Practical Training (OPT)

Foreign students completing associate, bachelors, masters or doctorate degrees as well as non-degree students completing structured programs or certificate programs in F-1 student status are eligible to receive permission from the U.S. Citizenship and Immigration Service (USCIS) to be employed for a period of one year. This employment authorization is called Optional Practical Training. Optional practical training after completion of studies is not a one-time option. If you use a one-year period of practical training after completion of your degree, you can obtain another period of optional practical training upon completion of a higher degree.

J-1 Student Visa

The J-1 visa in the United States is for people who wish to take part in work-and-study-based exchange and visitor programs in the U.S. These programs are sponsored by an educational or other nonprofit institution, which must be accredited through the Exchange Visitor Program designated by the U.S. State Department. J-1 exchange visitors come to the United States to teach, study, receive training, or demonstrate special skills. The J1 visa is meant for students who need practical training that is not available to them in their home country, and the training must be directly related to their academic program.

M-1 Student Visa

The "M" visa is for nonacademic or vocational studies. M-1 visa holders for technical and vocational programs are not permitted to work during the course of their studies. The M-1 student visa applicants must have evidence that sufficient funds are immediately available to pay all tuition and living costs for the entire period of intended stay.

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