The United States immigration law allows certain foreign nationals to file immigrant visa petitions in the employment-based second preference (EB2) classification to seek U.S. immigration benefits. Because it is an EB2 petition, the petitioner or beneficiary must be a professional with an advanced degree or an alien with exceptional ability.
Advanced Degree or Alien of Exceptional Ability
An advanced degree is defined as a U.S. degree beyond a bachelor’s, such as a Master’s, J.D., Ph.D., etc, or its foreign equivalent. To qualify as an alien with exceptional ability in the sciences, arts or business, three out of six criteria under the federal regulations must be met. The law further requires a job offer from a U.S. employer and completion of the labor certification procedure to process the foreign national’s immigration application.
In Re New York State Department of Transportation (NYSDOT)
National Interest Waiver (NIW) is an exception to the general requirement of job offers under EB2 classification. According to the statute, a job offer may be waived if USCIS “deems it in the national interest”. Foreign nationals do not need a job offer to file the NIW petition. In Re New York State Department of Transportation (NYSDOT), the only NIW precedent decision issued by legacy INS articulates the requirements for the waiver of a job offer to be deemed in the national interest. The decision in NYSDOT created a three-prong test for NIW petitions.
First, the employment must be in an area with substantial intrinsic merits; second, the proposed benefit must be national in scope; and lastly, the alien must demonstrate a significant benefit to the national interest.
1) Area with substantial intrinsic merits
Almost every NIW petitioner can satisfy the first element under NYSDOT.
2) National in Scope
The national scope requirement can also be easily satisfied if the benefit brought by foreign nationals’ jobs would not be confined to a local or regional area.
3) Significant Benefit to the National Interest
The key to a successful NIW petition is the establishment of the foreign national’s significant benefit to the national interest. There are two separate national interests involved in each NIW petition. One is the inherent national interest to protect U.S. workers through the labor certification procedure. The other is the national interest brought by the petitioner in his or her area of expertise. An NIW petitioner must show, by a preponderance of the evidence, that the benefit brought by the petitioner outweighs the national interest in protecting U.S. workers to such an extent that requiring the petitioner to undergo a labor certification process would actually adversely affect the national interest. The petitioner can win the argument on this issue by presenting sufficient evidence that he or she has had more influence or impact in the field as a whole than an available U.S. worker with minimum qualifications.
Although the statute provides that foreign nationals bringing a prospective benefit to the U.S. may qualify for this particular immigration benefit, USCIS will focus on the foreign national’s past achievements rather than their future accomplishments in determining their eligibility. Therefore, it is very important for NIW petitioners to document their past achievements in NIW petitions.
Advantages of NIW Petitions
First, NIW petitions do not require sponsorship from an employer; second, NIW petitions do not need to undergo a labor certification process; third, some foreign nationals may be immediately eligible to apply for adjustment of status once their NIW petitions are approved.
For a detailed discussion of NIW petitions, please refer to the NIW Frequently Asked Questions page of our website. The Law Offices of Yongbing Zhang has extensive experience in successfully representing talented foreign national professionals to file immigrant visa petitions before USCIS. As of yet, we have never received a denial on an NIW petition prepared and filed by our firm. Please click here to read some of our successful petitions.
Scope of our Services in NIW Petitions
Please contact us for a free evaluation of your NIW petition by filling out the initial online questionnaire and sending us your comprehensive curriculum vitae. After you retain us, we will provide the following quality services for your NIW petition:
• Provide a list of documents and evidence you should collect for your petition;
• Answer unlimited questions from you either through phone calls or emails regarding your NIW petition;
• Review all of your documents and proposed evidence and advise as to whether reviewed documents should be included in the petition or replaced with other evidence;
• Draft up to six letters of recommendation based on the information provided by you regarding the background and expertise of the recommenders;
• Work with you or the recommenders to finalize the letters;
• Prepare and finalize all the immigration forms and supporting documents for your petition, including the signed recommendation letters;
• Draft and finalize a petition letter in support of your petition persuasively explaining to the USCIS service center why your NIW petition should be approved according to the law and the evidence submitted;
• Organize, tab or paginate the petition package and file it with USCIS;
• Monitor the status of your pending case after filing;
• In the event of a USCIS Request for Evidence (RFE), Work with you to prepare (including drafting one additional letter of recommendation) and file the additional documentation in response to the RFE
• Advise you of further legal steps you can take after receiving USCIS decision, which marks the end of our legal representation of your NIW petition.
We will advise you of any legal steps you may take in the aftermath of USCIS decision. We will inform you whether or when you are eligible for adjustment of status after your NIW petition is approved. If it is a denial, we will discuss with you the option and possible outcome of your next actions, such as appeal to Administrative Appeal Office (AAO) or filing a new petition.
Rules for Clients Communication
At the Law Offices of Yongbing Zhang, client satisfaction is our priority. To better serve our clients, our office has implemented the following rules to assure the quality of our services:
1. All unanswered phone calls during the regular work hours shall be answered within 24 hours of the business day;
2. All emails shall be replied to within 24 hours of the next business day;
3. All first drafts of letters, statements, affidavits or other documents shall be completed within 5 business days upon receipt of all the necessary information from the client;
4. All revisions, amendments or additions to a draft of a letter, statement or affidavit shall be completed within five business days after the request by the client;
We suggest that you contact us today for a free evaluation. Within 24 hours, our experienced attorneys will provide you with a detailed analysis of your case.