A common employment visa is the EB2. It is an application for United States Permanent Residence or Green Card. A regular EB2 application requires that the applicant receive an approved letter of labor certification from the US Department of Labor. An option to avoid DOL Labor Certification is to apply for the EB-2 National Interest Waiver. In this option, the applicant can self-petition without the need for their employer to apply for the Labor Certification. It is advisable that the applicant be a member of an association related to his/her profession or demonstrate exceptional ability in the sciences, business, or art. But the main requirement is demonstrating that your work in your field will be in the national interest of the United States. In the seminal case on the EB2/NIW, Matter of New York State Department of Transportation, 22 I&N Dec. 215, the legacy Immigration & Naturalization Service (INS) gave guidance regarding the threshold for a waiver of the labor certificate including the following criteria:
- The person seeks employment in an area of substantial intrinsic merit,
- The benefit will be national scope, and
- The national interest would be adversely affected if a labor certification was required.
Prior to this landmark case however, the Administrative Appeals Unit of the INS suggested that the following seven factors be considered in determining a grant or denial of a NIW:
1. Improving the U.S. economy,
2. Improving wages and working conditions for U.S. workers,
3. Improving education and programs for U.S. children and under-qualified workers,
4. Improving health care,
5. Providing more affordable housing,
6. Improving the U.S. environment and making more productive use of natural resources,
7. Interested government agency request.
One of the most common errors that applicants make when filing for an NIW EB2 is over generalization. The USCIS does not appreciate receiving letters of grand gesture and self-appeasement in regards to promises to make the United States a better place. Moreover, they prefer to see actual past contributions to the field that have received recognition and positively influenced the field in some way or another. The applicant should demonstrate, with ample evidence, that his/her past experience will truly benefit the nation as a whole, be a benefit to the U.S. Economy, and/or benefit the environment, health care, worker’s wages, or eduction of the United States. Finally, if the applicant’s work is funded, even in part, by a U.S. Government Agency, then these applications are given preference. This is why this form of petition is a bit easier to accomplish for Engineers and Medical Researchers who receive U.S. Government grants.
