The EB-2 “National Interest Waiver” (NIW) program allows foreign professionals with an advanced university degree whose present work substantially furthers an important national interest (such as health, medicine, environment and business/economy) a “fast track” process for obtaining Green Card status in the United States. This visa program has several important benefits:

• No permanent job offer is required;
• No employer sponsorship is required;
• No  “Labor Certification” is required from the Department of Labor;
• No newspaper advertising for the position is required;
• Allows for change of employer during the petition.

The lawyers at Visa Law Group regularly assist foreign professors, scientists, and researchers prepare and file comprehensive EB-2 immigrant visa applications.  Our past and present clients include:

• Leading researchers and scientists working at government research institutions and agencies such as NIH, NIST, USDA, EPA, FDA and others;
• Researchers and professors from leading universities in the United States and abroad;
• Researchers and scientist at private and publicly traded companies in such industries as biotechnology, pharmaceutical, engineering; manufacturing, IT, banking, and others;
• Acclaimed physicians working in specialty fields of medicine. 

This employment based immigrant visa has several important qualifying criteria and limitations to be considered before seeking this status:

Key Factors

As an advanced degree alien working at a public or private institution, the foreign researcher, scientist or professor may apply for an immigrant classification under this program if he or she meets the following two tests:

1. Advanced University Degree

The first requirement of this program is that the alien must have earned an advanced university degree that is equivalent to a Master’s degree or higher in the United States. Qualifying advance degrees include foreign MD degrees, PhD degrees, MS or MA degrees, and MBA degrees.

2. Area of Expertise is of Substantial Intrinsic Merit

Under this program, the area of expertise has to be of “substantial intrinsic merit.”  Thus, the alien’s research has to significantly benefit and further an important national interest such as health, medicine, environment and business/economy of the United States.  The successful application also requires a showing that the alien is employed in this area of expertise and continues to benefit the United States.

3. Benefit it National In Scope

The program also requires that the impact of alien’s research or work is “national in scope.” This  criterion was first discussed in a case called NYS DOT vs. INS; in this case the INS/CIS denied the NIW petition of a foreign engineer who was redesigning road bridges in New York State because the scope/impact of his work was arguably restricted to that State and therefore not “national” as required under the program.

4. Alien Exceeds His or Her Peers To A Substantially Greater Degree

Finally, this program requires the demonstration to the satisfaction of CIS that the alien is a highly respected expert and his or her work is well recognized in the field.  In many ways, the NIW program carries a similar “expertise” standard as described in the AEA and OR programs.

Generally, this nationally or internationally recognized expert status may be demonstrated by such evidence as authorship/co-authorship of original articles, memberships in industry organizations, citation of his or her work by other scientists, receipt of national or international awards, service as judge/reviewer of the work of another in the field, and presentations at national and international conferences or seminars.

In our opinion, this program is properly reserved for only highly experienced experts. And while not part of the regulations, our firm always provides the CIS with testimonials from numerous independent experts specifically addressing the high professional standing and regard of the Applicant in the field.   

The Filing Process

In general, the immigrant visa application consists of two steps: Step #1 Filing an immigrant petition with the CIS Regional Service Center; this petition requires comprehensive documentation supporting the factual basis for “how and why” the expert qualifies for the classification. Step #2 Seeking adjustment to permanent resident status (Green Card) either through the CIS or the Department of State.

And based upon careful consideration of various factors, the Step #2 process may be completed under two different options:

(1)  Consular Processing Upon Approval of the I-140/EB-1 Immigrant Petition:

Upon approval of the immigrant visa CIS will transfer the file to the National Visa Center which will then transfer the case to the U.S. Embassy / Consulate in the country of residence of the alien.  The Green Card will be issued there and valid up reentry into the United States.

(2)  Adjustment of Status in the United States – Form I-485:

As an alternative the “Green Card” can be obtained by filing for adjustment of status in the United States.  The adjustment of status can be filed concurrently with the Form I-140 or upon approval of the Form I-140 petition.  The concurrent filing allows for an application for Work Authorization by the alien and his spouse and children as well as for Travel Documents for the alien and his dependents. 

Picking the best method for filing requires analysis of many different issues, and great caution should be exercised in making this important decision.

Our Experience

The lawyers at Visa Law Group regularly help foreign business professionals and companies prepare and file comprehensive EB-2 NIW visa applications.  If you need legal advice or help with this visa, please feel free to contact us at Morris@VisaLawGroup.com