Frequently Asked Questions

1.Do I need to be in the United States when applying for NIW?
It is also possible to apply for EB-2 NIW when you are outside the United States. The difference is that after the I-140 application is approved and the priority date becomes current, applicants outside the United States need to go through consular processing to obtain their green card. If you are within the United States, you can file the I-485 Adjustment of Status application to obtain your green card. In terms of processing time, I-485 usually takes 1 to 3 years, while consular processing typically takes longer, so patience is required.

2. How can I prove my outstanding abilities and contributions to the national interest?
You can do so by providing academic papers, patents, awards, publications in internationally recognized journals, membership in professional organizations, and more. Additionally, you can provide evidence demonstrating that your work significantly impacts national interests in areas such as the economy, science, technology, culture, education, and others.

3. Do I need employer support to apply for EB-2 NIW?
No. EB-2 NIW is under the self-petitioning green card category. You do not require employer sponsorship or labor certification approval. You can independently file the application by demonstrating your outstanding abilities and contributions to the national interest to obtain the green card.

4. If my PERM application is denied, can I still apply for NIW?
Yes. The Labor Certification process (PERM) is handled by the U.S. Department of Labor, whereas NIW applications are reviewed by USCIS (U.S. Citizenship and Immigration Services). Even if your PERM application is denied by the Department of Labor, USCIS still has the authority to approve your NIW petition. This is because NIW is a special exemption that allows applicants with national interest and outstanding abilities to obtain a green card without the need for a labor certification.

5. How important are individual skills and unique backgrounds in an NIW application?
Emphasizing an applicant’s individual skills and unique background alone isn’t sufficient. The key lies in demonstrating how these individual skills and unique background contribute to the national interest of the United States. This national interest should be seen as more than just protecting the interests of American workers; it should have a positive impact on the entire country. Therefore, in the application, the focus should be on explaining how the applicant’s skills and background align with the national interest of the United States and how they contribute to the country’s economic growth, innovation, and development. Such arguments will help highlight the applicant’s value and contributions to the United States.

6. What should I do if I haven’t received any form of notification from USCIS after submitting my application?
Since USCIS notifications are typically sent via mail, there’s a risk of them getting lost in transit. USCIS still relies on traditional mail for notifications, and the provided email address is often more of a formality. If additional documents are required, USCIS will notify via email, but these emails might not contain specific details about the requested documents. You’ll need to await the mailed notification letter to understand the exact requirements for supplemental documents. If you have your application receipt number but still haven’t received notification letters, it’s advisable to closely track your case on the USCIS official website.

7. What are the differences between EB-1A and EB-2 NIW?
The main difference between these two immigration categories lies in their requirements. Other aspects are quite similar, so it’s advisable to apply based on your own professional background. Currently, EB-1 tends to have slightly shorter priority dates, but the qualifications required for an individual in EB-2 are slightly lower.

8. What is the National Interest Waiver (NIW)?
The National Interest Waiver (NIW) is a specific exception within the second preference of U.S. immigration (EB-2). Typically, before filing for EB-2 immigration, individuals require employer support and approval through the Labor Certification (PERM) process. However, with NIW, individuals meeting the criteria of serving the national interest of the United States can directly apply for and obtain a green card without the need for an employer or labor certification. (Please refer to: “The New Darling of U.S. Immigration – NIW National Interest Waiver“

9. What are the basic requirements for the National Interest Waiver (NIW)?
When applying for the National Interest Waiver (NIW), applicants must first meet the basic requirements of EB-2. This means the applicant must be a professional with an advanced degree or possess exceptional abilities in the fields of science, arts, or business. Additionally, it’s necessary to demonstrate that waiving your labor certification is in the national interest of the United States.

10. What are the criteria for an “advanced degree”?

1. Doctoral degree certificate;
2. Master’s degree certificate; or
3. Bachelor’s degree certificate plus proof of five years of full-time work experience.

11. What are the criteria for “exceptional ability”?
According to relevant regulations by the U.S. Citizenship and Immigration Services (USCIS), “exceptional ability” refers to possessing outstanding skills in the fields of science, arts, or business, or meeting any three of the following criteria:

1. Official academic records demonstrating degrees, diplomas, certificates, or awards from academic institutions relating to the exceptional ability field.
2. Proof of at least 10 years of full-time work experience.
3. Professional licenses or certifications.
4. Evidence of high salary or compensation due to exceptional ability.
5. Membership in professional associations.
6. Recognition from peers, government entities, professional or business organizations for achievements and contributions. Note: Applicants can also provide additional evidence showcasing exceptional ability.

12. How to demonstrate that “waiving the requirement of a labor certification is in the national interest”?
The standards for USCIS officers to judge this are based on the Administrative Appeals Office’s criteria for National Interest Waiver applications, known as the “New Three Criteria,” promulgated on December 27, 2016:

1. The applicant’s work field holds substantial intrinsic merit and national importance. The work field can encompass business, enterprise, science, technology, culture, health, education, etc.
2. The applicant possesses beneficial attributes to advance the proposed endeavor. This criterion shifts focus to the applicant, confirming their ability to advance the field. It includes, but is not limited to, the applicant’s level of education, skills, knowledge, achievements in the field, plans for future work, career progress, and the interests of potential customers, users, investors, or other relevant entities or individuals.
3. After balancing all factors, it is more beneficial to the United States to waive the labor certification requirement.

While Congress established the labor certification process to safeguard the American labor market and promote national interests, it also introduced the National Interest Waiver to allow eligible applicants to apply without U.S. employer support and exempt from the labor certification process.
When balancing these interests, USCIS may consider factors such as the impracticality of the applicant obtaining a PERM certification, even if qualified U.S. workers exist, the applicant’s contributions would still benefit the United States; the urgent need for the applicant’s contributions to the national interest of the United States to waive their labor certification. Immigration officers need to reach a conclusion that waiving the applicant’s labor certification and job offer serves the national interest after considering these factors comprehensively.

13. What are the evidence to prove that the applicant meets the NIW national interest exemption?
Academic degree certificates, membership in reputable associations, proof of income higher than peers, etc;
Published professional articles and records of citations;
Invitations for speaking engagements or serving as a judge at professional conferences;
Recommendation letters from individuals or entities within the field or related fields; Patents applied for or authorized for application by the applicant, contracts authorizing their research or work, and other instances where the applicant’s work has been applied or promoted;
Professional awards received by the applicant;
Media coverage of the applicant or their work;
Job offers from U.S. companies that require outstanding abilities and high qualifications.

14. What are the possible outcomes after the initial review by the immigration office?
There are four potential outcomes from the immigration office:

1. Approval of NIW application:
   If your application is approved, USCIS will issue an Approval Notice (Form I-797) to you.
2. Request for Additional Evidence (RFE):
   If the immigration officer believes that the existing documentation is insufficient to support your application, they may issue a notice requesting additional evidence. Typically, applicants are given up to 84 days to respond to this notice.
3. Notice of Intent to Deny (NOID):
   After review, if the immigration office intends to deny your application unless specific additional evidence is provided, they issue a Notice of Intent to Deny. Usually, you have 30 days to respond, and if you fail to do so, your application will be denied.
4. Denial Notice:
   The immigration office, after review, denies your application.