National Interest Waiver is another alternative for self-sponsored Green Card besides EB-1(a). It is a popular option for PhD students because some of the requirements of publication and citation numbers don’t seem as high as EB-1(a) Aliens with Extraordinary Ability.
In order to qualify for an NIW petition, the applicant must first prove to be qualified for the employment-based, second preference (EB-2) immigration category. The petitioner must have either an (1) “advanced degree” or (2) “exceptional ability” in the sciences, arts, or business.
The advanced degree can be proved by showing that the petitioner has a professional or academic U.S. degree above the bachelor’s level. Or in absence of a graduate-level degree, the petitioner must hold a U.S. Bachelor’s degree or a foreign equivalent plus 5 years of progressive professional work experience. If there is no way to show the petitioner has an advanced degree, the petitioner may also show that he/she is eligible for the EB-2 category by proving that he/she has an exceptional ability in the claimed area of expertise that is above the average in the profession.
Once the foreign national petitioner can show that they meet the threshold EB-2 requirements, he/she must also need to show that one meets the NIW requirements in order to request USCIS to waive the job offer or labor certification for self-petition.
The USCIS applies the standard of analysis on the AAO decision Matter of Dhanasar, issued on December 27, 2017. The current NIW standard is:
The main advantage of NIW over regular employment-based petitions is that there is no labor certification or permanent job offer requirement. It is thus an attractive choice for Ph.D. students, scholars, researchers, postdoctoral research fellows, and other advanced degree professionals.
Because it is a 2 nd Preference employment-based immigration petition, for the petitioners from India and China, they have to wait years to file their adjustment of status (I-485) or consular processing on when their visa numbers become available for the EB-2 visa category.
A successful NIW petition and EB-1(a) petitions require lots of preparation and documentation of relevant evidence. Because of its waiver of labor certification, the approval rates of NIW I-140 petitions are generally lower than regular employment-based ones. However, with the assistance of an experienced immigration attorney, the chances of approval for NIW petitions are higher.
Please contact our office if you would like to know whether you may be eligible for this self-petition immigrant visa option.
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