EB2 National Interest Waiver Processing Time

Author: Michael Ashoori

This blog is a brief discussion of the EB2 National Interest Waiver and its processing time. To request a free consultation to discuss the National Interest Waiver (NIW), or any other immigration questions, please contact Ashoori Law by clicking this link.

 

An EB2 (Employment Based, Second Preference) National Interest Waiver refers to a specific process by which foreign nationals may undergo the green card process. Generally, foreign nationals wishing to apply for a green card must first be sponsored, meaning they must have a petition filed on their behalf by a qualifying petitioner. Generally, an employment based petition is filed by an employer. However, certain individuals may self-petition, and the National Interest Waiver is one such way to do this.

 

The National Interest Waiver is based upon employment. Typically, employment based visas require labor certification. The EB2 waives the job offer and labor certification requirement, but the proposed endeavor has to be in the national interest of the United States. The EB2 National Interest Waiver is based upon the individual’s specific type of work. The individual must be able to show that the work they will perform on receipt of their green card is work that is within the national interest of the United States. Additionally, the qualified individual must meet several criteria with respect to their professional achievements in their field.

 

The National Interest Waiver is a lengthy process. The bar for a waiver of the labor certification process is very high. Additionally, the National Interest Waiver is one of the few immigration benefits that does not allow for filing with Premium Processing. According to USCIS, processing times for National Interest Waiver petitions are currently quoted as up to 13.5 months. It is also important to note that the National Interest Waiver is a petition, and is not in of itself an application for a green card. The National Interest Waiver must be approved prior to a green card will be approved. While the green card can be applied for concurrently with the National Interest Waiver self-petition, depending on the strength of the case, it may be more beneficial to wait for an adjudication of your National Interest Waiver case before filing for the green card. For this level of legal strategy, individuals should consult with an experienced immigration attorney to determine the best course of action.

 

Even though the processing time with USCIS for the NIW is lengthy, you should not immediately apply without ensuring you file with the strongest case possible, even if it takes longer to apply. A strong National Interest Waiver petition often involves thousands of pages of supporting documentation. Additionally, a strong NIW petition should include a detailed letter that argues each section of the law and demonstrates why the applicant is eligible for the waiver.

 

If you are interested in the NIW, the first step you should take is to consult with an experienced immigration attorney to determine if you are eligible. If the attorney advises that you meet the requirements for the NIW, you should begin compiling your evidence. The most common evidence to submit in support of a National Interest Waiver is letters that are signed by peers within the same field, that attest to the individual’s high level of skill and the nature of their work within the national interest. These letters, while they do not require advanced legal arguments, should articulately express the subject’s qualifications in detail.

 

USCIS looks at the aforementioned letters of reference as evidence of the individual’s merit in their field. USCIS will also consider a number of additional different probative sources of evidence, including newspaper articles, emails, journal publications, and more. Available and helpful evidence will all depend on the individual’s field and qualifications. In general, each National Interest Waiver petition is unique and should not be duplicated due to the highly individualized nature of each different applicant’s work and specific qualifications. The criteria for merit in the field, as well as the threshold that the individual must meet for approval, can be found on the USCIS website.

 

Even if the individual does meet the criteria required, they must also be able to prove that the work they will do upon approval of the waiver will be in the national interest of the US. This requires an in-depth understanding of the field in question, as well as what the USCIS considers to be within the national merit. This should be accompanied by proof that the individual will have relevant work opportunities on receipt of the green card. Common fields that receive favorable adjudication of the NIW are scientific areas such as medicine, environmental research, and advanced technology sectors. However, the National Interest Waiver is not just limited to science. If you feel that work you are petitioning to do would be within the national interest of the US, but have doubts about the chances of approval, it is a good idea to begin the process with a discussion with an experienced immigration attorney.

 

If you are currently in the US as a student, you might consider the National Interest Waiver in the future. During the initial year of OPT, F1 students often consider the subject of longer term sponsorship with their employers. This would most likely take the form of entry in the H1B visa lottery, which occurs in March of the given fiscal year. Note that there is no guarantee of selection in the lottery, and if you are not selected, you may run the risk of not having work authorization in the U.S. following OPT. If your school of study is one that may be in the national interest of the US, consult with an immigration attorney about whether the H1B lottery process or NIW process is better suited for your situation. 

 

Between the process of collecting evidence, gathering recommendation letters, and overall preparation of the National Interest Waiver petition for filing, from start to finish the process should take about 2 months. This amount of thorough preparation time is necessary to withstand the high bar of scrutiny with which USCIS reviews these petitions. Once filed, it is possible that USCIS will issue a Request for Evidence, challenging certain aspects of the petition. For this, an immigration attorney can guide you through the procedure of collecting new evidence and timely submitting the response. However, if a strong petition is prepared, USCIS can and frequently does approve National Interest Waiver petitions without ever requesting additional evidence. Regardless, expect that it will take at least a year to a year and a half for overall approval of your National Interest Waiver.

 

On a final note, if you feel that your National Interest Waiver case is strong, you can submit the application for the green card along with your National Interest Waiver petition (remember that it is a 2 step process: the NIW and then the green card application). This may be what your attorney advises you to do. The green card adjudication time can be as much as two years. However, along with the green card application, you may submit applications for ancillary work and travel permission, which usually takes about 6 months to receive from USCIS. These ancillary applications give you the right to work and travel internationally freely, without restriction, and do not hinge upon approval of the National Interest Waiver. If you feel you have a strong National Interest Waiver case, and want to apply for your green card along with your petition, in less than a year from starting your case you would most likely have unrestricted work and travel permission. As enticing as this may be, remember that you would still wait over a year for the adjudication of your petition, and then even longer to receive your green card.

 

If you are a foreign national performing work that you feel is within the U.S. national interest with questions about your eligibility and the process, please contact my office to consult with your questions, and determine a strategy for you and help you build your case, and path to permanent residency. Please request a free consultation with our firm if you have any questions by clicking this link.

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Michael Ashoori, Esq.

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I’m a U.S. immigration lawyer and I help families, professionals, investors, and entrepreneurs get visas, green cards, and citizenship to the United States.

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