The White House’s February 12, 2024 update to the Critical and Emerging Technologies (CET) List is more than a policy announcement — it can be a powerful evidentiary tool for EB-2 National Interest Waiver (NIW) petitions. For F-1 STEM students and H-1B specialty occupation professionals, the CET List provides clear federal recognition that their work touches areas vital to U.S. national security, economic strength, and technological leadership. When incorporated thoughtfully, it strengthens all three prongs of Matter of Dhanasar and aligns directly with favorable guidance in the USCIS Policy Manual.
Why the 2024 CET List Matters
The CET List identifies areas such as AI and machine learning, advanced computing, quantum technologies, semiconductors, space systems, clean energy, biotechnology, and next-generation communications as essential to safeguarding U.S. competitiveness. Demonstrating that a beneficiary’s research, product development, or professional activities fall within these categories makes it easier to show that the proposed endeavor has broad national importance — a core requirement of NIW petitions.
Using the CET List to Address the Dhanasar Prongs

1. Substantial Merit and National Importance
   By linking the applicant’s work to specific CET categories and subfields — for example, “trustworthy AI,” “advanced genetic engineering tools,” or “energy storage technologies” — petitioners can show that the endeavor aligns directly with U.S. strategic priorities. Evidence such as patents, peer-reviewed publications, funded research, technical reports, prototypes, and real-world deployments helps illustrate the tangible national impact of the work. Because the CET List represents an interagency consensus, its terminology can be persuasive when demonstrating national importance under the first Dhanasar prong.
2. Well Positioned to Advance the Endeavor
   The 2024 USCIS Policy Manual provides exceptionally favorable language for STEM degree holders whose work advances CET areas. USCIS instructs officers that:

• “USCIS considers an advanced degree, particularly a Doctor of Philosophy (Ph.D.), in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness or national security, an especially positive factor… under the second prong.”
• “Persons with a Ph.D. in a STEM field… have scientific knowledge in a narrow STEM area… Even when the area of concentration is in a theoretical STEM area… it may further U.S. competitiveness or national security as described in the proposed endeavor.”

This guidance makes it easier than ever to demonstrate that STEM Ph.D. recipients — including F-1 doctoral candidates transitioning to post-completion OPT or H-1B status — possess the specialized expertise required to advance critical technologies. Petitioners may explicitly tie dissertations, research projects, conference papers, industry leadership, and technical skills to the relevant CET subfields to show that the beneficiary is uniquely equipped to move the endeavor forward.
    3. Waiving the Labor Certification Is in the National Interest
Prong three examines whether the United States benefits from waiving the job-offer and labor-certification requirement. In CET-related cases, USCIS again provides favorable, explicit guidance. The Policy Manual states that when adjudicating prong three, officers may treat the following combination of factors as a strong positive factor:

• The person possesses an advanced STEM degree, particularly a Ph.D.;
• The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
• The person is well positioned to advance the proposed STEM endeavor of national importance.

In fast-moving areas like AI safety, quantum computing, advanced robotics, and bioengineering, delays inherent in the PERM labor certification process can hinder innovation. By emphasizing both the urgency of CET-related work and the applicant’s irreplaceable expertise, petitioners can demonstrate that waiving labor certification serves the national interest. Expert letters and employer statements discussing the potential harm of delaying the applicant’s contributions can seal this argument.
Bottom Line
With the 2024 CET List and the updated USCIS guidance on STEM Ph.D. holders, NIW petitioners now have a powerful framework for demonstrating national importance, the beneficiary’s unique positioning, and the national interest in waiving labor certification. For F-1 and H-1B professionals driving innovation in America’s most strategically significant technology sectors, leveraging these federal resources can materially enhance the likelihood of NIW approval.

What PhD Students and H-1B Professionals Need to Know in 2025
If you're pursuing permanent residency through the EB-2 visa with a National Interest Waiver (NIW), recent changes by U.S. Citizenship and Immigration Services (USCIS) should be noted. As of April 1, 2024, USCIS implemented a new fee schedule, including an increase in the I-140 petition fee and the introduction of a new fee called the Asylum Program Fee. These changes affect both self-petitioners and those with employer sponsorship.

Higher Filing Fees for Form I-140
Form I-140, the Immigrant Petition for Alien Worker, is a crucial step in the green card process for EB-2 NIW applicants. Whether you're a PhD candidate self-petitioning or an H-1B visa holder with employer support, you must now plan for increased costs.

Here’s what changed:

• Old I-140 fee (before April 1, 2024): $700
• New I-140 fee (as of April 1, 2024): $715

While the $15 increase may seem modest, it’s part of a broader fee adjustment by USCIS to improve processing times and expand services. But the real impact comes from a new, mandatory additional fee.

The New Asylum Program Fee: What It Is and Who Pays
To offset the costs of the U.S. asylum system, USCIS now requires most employment-based petitioners to pay an Asylum Program Fee along with their I-140.
Details:

• Fee amount: $600
• Who pays: Large employers filing I-140 petitions must pay the Asylum Program Fee.
• Reduction: Individuals filing Form I-140 as self-petitioners under the EB-2 NIW category get a reduction from the $600 Asylum Program Fee and only need to pay $300.

This is good news for many PhD students and researchers who typically self-petition under EB-2 NIW, as it helps keep their total costs lower. However, if you're an H-1B visa holder with an employer-sponsored petition, your employer might be willing to cover this additional fee.

Other Fee Considerations
The changes to I-140 are part of a broader USCIS fee overhaul that affects various forms, including adjustment of status (Form I-485) and work/travel authorization applications. If you're planning to file a concurrent I-485 or apply for EAD/AP while in the U.S., be aware that USCIS now charges separately for each of these forms. Bundled discounts have been removed.

Embarking on a doctoral journey in the United States is a significant accomplishment, but for many international PhD students, the question of what comes next looms large. The prospect of obtaining a green card and securing a future in the U.S. can be a complex and daunting process. However, for those pursuing advanced degrees, the EB-2 National Interest Waiver (NIW) stands as a promising avenue for a smoother transition to permanent residency.

Understanding the EB-2 NIW: The EB-2 NIW is a category within the employment-based immigration system that allows individuals with advanced degrees or exceptional abilities to apply for a green card without the need for a specific job offer or labor certification. For PhD students, this waiver can be a game-changer as it recognizes the value and contributions they bring to the nation.
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Eligibility Criteria for PhD Students: To qualify for the EB-2 NIW, PhD students must meet certain criteria:

1. Advanced Degree: As a PhD student, you already possess an advanced degree, making you eligible for the EB-2 category.
2. National Interest: The key to a successful EB-2 NIW application is demonstrating that your work is in the national interest of the United States. This may involve showcasing your research, publications, or other contributions that have a significant impact on your field and, by extension, the nation.
3. Exceptional Ability: While the primary focus is on the national interest aspect, showcasing your exceptional ability in your field can further strengthen your case. Highlighting awards, publications, and other achievements can bolster your application.

Navigating the Application Process: The process of obtaining an EB-2 NIW green card can be intricate, and seeking the guidance of an experienced immigration lawyer is highly recommended. Here's an overview of the general steps involved:

1. I-140 Petition: File an Immigrant Petition for Alien Worker (Form I-140) with U.S. Citizenship and Immigration Services (USCIS). This petition establishes that you meet the eligibility criteria for the EB-2 NIW.
2. Supporting Documentation: Compile a comprehensive set of documents supporting your eligibility, including letters of recommendation, evidence of your contributions to your field, and any other relevant materials.
3. National Interest Argument: Craft a compelling argument demonstrating the national interest of your work. This may include explaining how your research addresses important issues facing the U.S. or contributes to advancements in a critical field.
4. Adjustment of Status or Consular Processing: Once the I-140 petition is approved, you can either apply for an adjustment of status if you are already in the U.S. or go through consular processing if you are abroad.

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Conclusion: For PhD students at U.S. universities, the EB-2 NIW offers a valuable opportunity to secure a green card and continue contributing to their field on a national scale. Navigating the immigration process can be complex, but with the right guidance from an experienced immigration lawyer, the path to permanent residency becomes more manageable. As you embark on this journey, remember that your research and expertise have the potential to shape the future of your field and make a lasting impact on the United States.

The U.S. visa bulletin is a monthly publication that lists the availability of immigrant visas for each country and category, including the employment-based (EB) category of which the EB-2 NIW is a part. Visa retrogression occurs when the number of applications for a particular category or country exceeds the number of visas available. This can cause delays in the processing of green card applications.




​There are a number of factors that can contribute to visa retrogression, including:

• High demand for visas: The demand for immigrant visas has been increasing in recent years, due to a number of factors, including the growth of the global economy and the increasing number of people who want to live and work in the United States.
• Limited supply of visas: The number of immigrant visas that are available each year is limited by law. This is because the U.S. government sets a cap on the number of visas that can be issued each year.
• Per-country limits: The U.S. government also sets per-country limits on the number of immigrant visas that can be issued each year. This means that the number of visas that are available to each country is limited, regardless of the demand for visas from that country.

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Visa retrogression can have a significant impact on people who are seeking to immigrate to the United States and to those who are in the United States and have a nonimmigrant visa that is about to expire. If you are considering a petition for an EB-2 with national interest waiver, it is important to be aware of the possibility of visa retrogression. Not only do processing times vary from just a few months to far more than a year, but if your EB-2 NIW petition is approved, you may not have a priority date that is current on the visa bulletin because of visa retrogression.

If you are facing visa retrogression, there are a few things that you can do:

• Be patient: Visa retrogression is a temporary problem. The number of visas available will eventually increase, and you will be able to obtain a green card.
• Maintain your nonimmigrant status if you are already in the USA: If you have a nonimmigrant visa, such as an   H-1B, F-1, or TN, you will need to maintain it to remain in the United States because you will not be able to adjust status to a green card without a current priority date. 
• Stay informed: Keep up-to-date on the latest developments in immigration law and on the availability of visas.

Within the requirements of the EB-2 national interest waiver, there are subparts that you must demonstrate. One of the items that you must prove to USCIS is that your proposed endeavor will benefit the USA despite the availability of other U.S. workers. This can be a difficult obstacle for you to overcome if you are in a profession were there is no shortage of American professionals.
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Of course, there is no one set method for getting an EB-2 NIW petition approved; nor is there a fixed national interest waiver template for your case. This article provides two possible arguments for establishing that you will benefit the United States with your proposed endeavor despite the possibility of other U.S. workers being available.

Should USCIS waive your job offer and labor certification?
To prove to USCIS that “on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements,” an EB-2 NIW candidate may provide evidence and argument that the following three subparts are true under the preponderance of the evidence standard:
 

1. Whether it would be impractical for the foreign national to secure a job offer and thus a labor certification;
   
2.  Whether the U.S. would still benefit from the foreign national’s contributions, despite the availability of qualified U.S. workers ; and
   
3. Whether the foreign national’s contribution is sufficiently urgent to warrant forgoing the labor certification process 

 
2. Are you beneficial despite there being U.S. workers available?
There are a variety of ways to show that an NIW case should be approved because the answer to the above question is YES.

BLS.gov/ooh
First of all, there may actually be a current or predicted shortage of workers in a foreign national’s job category. Checking the BLS Occupational Outlook Handbook might reveal that jobs are “likely” or “very likely” in the future. A further review might show that there is a high percentage of jobs that are predicted to be needed during this decade. This could lead to a strong argument that there is not a current availability or there will not be a future availability of American workers.

Specialized skills: You are special!
A second idea is that you could state that even if there are U.S. workers available, they do not have your specialized skill set. This might be a prudent time to remind the adjudicating USCIS officer of all of the evidence that you discussed earlier in your EB-2 NIW petition letter that shows that you are well positioned to achieve your proposed endeavor. You might use this information to prove that you are way different than your average person in your field.
 

When you petition for an EB-2 NIW you will need to prove to USCIS that a waiver of the job offer and the labor certification requirement is called for. Even if your proposed endeavor has substantial merit and national importance. There are still other elements that you will need to prove to get an EB-2 with a national interest waiver. 
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Filing an NIW case with USCIS that does not establish all three parts of the regulations, can lead to a Request for Evidence (RFE). That can be frustrating after you have waited those many months of processing time. 
What do you need to prove for an EB-2 NIW? 
Under the framework in Matter of Dhanasar, USCIS may grant a national interest waiver if the following criteria are met: 
(1) The proposed endeavor has both substantial merit and national importance;   
(2) The Beneficiary is well positioned to advance the proposed endeavor; and   
(3) On balance, it would be beneficial to the United States to waive the job offer and labor certification requirements. 
What does the third criterion for the NIW mean? 
To show that “on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements,” a potential NIW recipient should be prepared to prove the following: 

1. Whether it would be impractical for the foreign national to secure a job offer and thus a labor certification 

1. Whether the U.S. would still benefit from the foreign national’s contributions, regardless of the availability of qualified U.S. workers 

1. Whether the foreign national’s contribution is sufficiently urgent to warrant forgoing the labor certification process 

Why might a job offer and labor certification be impractical? 
When an employer sponsors you for an EB-2 (EB-2 with PERM), a labor certification is required by USCIS. For an EB-2 NIW, since you are asking that the PERM part of case be waived, you will need to supply some convincing reasons, supported by evidence. 
A labor certification concerns the actual minimum requirements for a job opportunity. Demonstrating that you have far more than the minimum criteria may be a compelling argument to show why a PERM is impractical for you. Additionally, if your proposed endeavor is to consult widely in the United States, then being tied to one company would not likely be appropriate. Of course, an entrepreneur who is seeking a national interest waiver would not need a job offer and might hopefully create American jobs.  
There are a variety of arguments for why a job offer and labor certification might be impractical for you. The key is that you tell USCIS what they are. 

If you are a researcher and do not have many citations, or you are not a researcher at all, you might still be able to qualify for an EB-2 NIW green card. There are some law firms that prefer to focus on national interest waiver cases for researchers with hundreds of citations for several reasons, including a possible offer of a money-back guarantee if the foreign national is denied. Accepting only clients with a heavy research and patent background may help to avoid an RFE (Request for Evidence) or denial. 

However, there are plenty of non-researchers or Ph.D. students with just a few citations who have been approved for an EB2 NIW. It may be in the national interest of the USA to offer an NIW to a businessperson or entrepreneur, as well. These exceptional EB-2 NIW candidates may have other evidence of being well positioned to achieve their proposed endeavor besides research. 

Thesis or Dissertation Research 
Foreign nationals who have an advanced degree may have had to write and defend a thesis or dissertation as part of their graduation requirements. In addition to submitting the document as evidence with the EB-2 NIW petition letter, a national interest waiver candidate might also consider creating a Google Scholar or ResearchGate profile. 

Those who are in professions where they create projects or case studies might also consider adding those to their ResearchGate profile, as there is space to do so.  

What if you are in a business-related field and want an EB-2 NIW? 
There are countless professions that are not related to research but still benefit the American public or the U.S. economy. Professionals in banking, project management, or business intelligence, for example, may be able to demonstrate that they are well positioned to achieve their proposed endeavor in the United States without research. 

Some examples of persuasive evidence for a businessperson seeking a national interest waiver might include: 

• Memberships 
• High salary 
• Awards 
• Conference presentations 
• Professional development certificates beyond a master’s degree 

 
If one immigration law firm turns you down, try a different one 
Even if you have submitted your profile to an immigration law firm, and they told you that you were not a fit as a client, it does not mean that you absolutely cannot get approved for a national interest waiver. Different EB-2 NIW attorneys may focus on one type of professional, such as researchers, athletes, or inventors.  

If you believe that you meet the requirements for a national interest waiver, you might be surprised to find a green card lawyer that is interested in taking your NIW case if you keep looking.  ​

As you might be aware USCIS recently provided some new and additional guidance on the EB-2 with national interest waiver. 

Students getting master’s degrees, or those in Ph.D. programs, are encouraged to petition for a national interest waiver, especially those in STEM fields. However, the burden is on the petitioner to prove to USCIS that an EB-2 NIW should be approved. The USCIS policy manual for the national interest waiver has a variety of resources that are referenced in the footnotes that may be helpful for making a convincing argument that your EB-2 NIW should be approved. Below are three of them.  

Where to Find the USCIS Policy Manual for National Interest Waiver 
A straightforward way to find the USCIS Policy Manual and its section on the EB2 NIW is as follows: 

1. Go to uscis.gov and type “policy manual” in the search bar. 
2. Choose Volume 6 – Immigrants. 
3. Scroll down to Employment-based Classifications.
4.  Go down to Advanced Degree or Exceptional Ability.
5. Find National Interest Waiver of the Job Offer toward the bottom.  

As is the practice, the footnotes are marked by numbers and identified at the bottom of the page. This article will focus on the footnotes that are numbered in the 60s. 

National Strategy for Critical and Emerging Technologies for EB-2 NIW 
One footnote from the policy manual section on the national interest waiver references the National Strategy for Critical and Emerging Technologies. A foreign national in a technical field can find a great deal of helpful information in this document. 
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On the last page of the strategic publication is a list of 20 critical and emerging fields. Those whose role is listed here can include this information in their EB-2 NIW petition letter.  
 
Use Interim National Security Strategic Guidance for NIW  
The new guidance regarding the national interest waiver also discusses national security. Therefore, if applicable to a graduate student, Ph.D. candidate or professional, the Interim National Security Strategic Guidance may be useful to reference in an NIW petition letter. 

The document can be found at footnote #67 of the USCIS Policy Manual section on National Interest Waiver of the Job Offer. On page 9 of the Interim National Security Strategic Guidance is the start of the segment on national security. Here, persons in cybersecurity or financial risk might find persuasive arguments for demonstrating that it is sufficiently urgent for the USA to waive the job offer and labor certification requirement. 

Memorandum on Research and Development Priorities 
Researchers and those who have advanced degrees in STEM fields might find a wealth of information in the Memorandum on Research and Development Priorities, which is also identified in the footnotes of the USCIS Policy Manual section on National Interest Waiver of the Job Offer. There are several current topics that can be helpful in arguing that a foreign national’s proposed endeavor has substantial merit and national importance.  

For example, this reference tool discusses pandemic readiness and prevention as a priority. Another part refers to the need for research and development around climate change. 
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Strategize with an EB2 NIW lawyer near you. 
Although you can self-petition for a national interest waiver, it may be prudent to consult with an NIW attorney who handles such cases on a regular basis.  

By explaining to the EB-2 national interest waiver lawyer in your area, or virtually, between the two of you, you can brainstorm some other resources for compelling arguments for your case.  

A common question among foreign nationals who are applying for an employment-based green card is, “How many letters of recommendation will I need?”  Of course, a general response from immigration attorneys is “It depends on your case.” No two NIW cases are exactly the same, so a thorough review of your background generally gives the green card lawyer a better idea of what will build a strong petition. 

There is no set number of letters of recommendation that are required by USCIS. Therefore, the content, rather than the quantity, of the letters may be more important to create a compelling national interest waiver evidence package. 

Common numbers of LORs 
Three to five letters can be an adequate number of letters, especially when there is other evidence to support it. An EB2 NIW petition could have as many as 8 to 11 LORs and still receive an RFE. 

Yet a strong national interest waiver petition could have as few as 3 to 5 letters of recommendation and still be approved. The letters of recommendation generally do not make or break a petition that otherwise meets the Dhanasar criteria. 

Showing years of employment with letters
Those EB-2 NIW beneficiaries who have ten or more years of employment may need more letters of recommendation than other candidates. Such persons may want to provide supporting evidence of their decade or more of experience to show that they are well positioned to achieve their endeavors in the United States. 

Persons who have had more jobs during the past ten years may need more LORs to demonstrate this employment. For example, someone who has changed positions every other year during the last decade might need five letters to establish these responsibilities. Letter of employment can be provided by human resources or a person in a supervisory role.   

What USCIS does say about letters?
In the USCIS policy manual, the service indicates that a letter may be given some weight, but they should not be the “cornerstone of a successful claim.” 
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It can be important to have other objective evidence to go with an EB petition as well, rather than trying to get somebody to say something in their letter that will prove what a green card candidate has done without other documents to support the statements. 

Your immigration attorney might help 
Green card lawyers in your area have likely reviewed hundreds of letters of recommendation. Therefore, they may have ideas for what might be included in a letter of recommendation to strengthen your national interest waiver case. 


 

If you are going through the EB2 national interest waiver green card petition process, you might be able to show USCIS that you are well positioned to achieve your goals in the United States in a variety of ways. One straightforward method to demonstrate that you are well positioned is by providing evidence of earning a high salary. 

Since you are probably aware of the cost of an EB2 NIW filing costs and attorney billing, you are likely to command a fairly high level of compensation if you can afford these fees. The key; however, is to show the USCIS officer that you earn more than your peers. 
 
How to Show Evidence of High Salary 
USCIS officers have become accustomed to seeing certain documents as evidence of high salary and offering too many pieces of random paperwork can create confusion, doing more harm than good. Compelling documents include a W-2 tax form accompanied by paystubs for the portion of a year for which a W-2 is not yet available. 
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More speculative documents, such as a letter of offer of employment or agreement for stock options, tend to serve better as supplements to a W-2 and paycheck receipts, rather than being the sole examples of high salary. 

How to show high salary compared to peers 
Requests for Evidence from USCIS tend to consist of copied–and-pasted paragraphs that are common among the immigration petitions of a certain type. RFEs for an EB-2 NIW that cite high salary as an example of a green card candidate being well positioned tend to question the ways that salaries are compared to others. 

General Salary Comparison to Peers 
Many foreign nationals find the average salary for their profession from the U.S. Bureau of Labor Statistics. Additionally, O*Net, which provides a position’s SOC code, has a companion site called My Next Move.  

Here, one can locate both the median salary for a particular role in the United States, as well as the highest salaries. However, there are additional ways to demonstrate high salary compared to peers with more specificity. 

Salary Comparisons Based on Location and Experience 
Job search websites such as Glassdoor, Indeed, and LinkedIn have a feature where someone can check salaries for certain roles in particular parts of the United States. Finding salary data for the exact city or metropolitan area where an EB2 NIW beneficiary works provides a more specific comparison to their own. 

Additionally, if available, a foreign national can also provide USCIS with information on the average and highest salaries in their particular industry and/or with their number of years of experience. Providing this information with an EB-2 NIW petition letter and Form I-140 can help to avoid an RFE from USCIS. 
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Ask an immigration lawyer near you for help. 
Although foreign nationals can self-petition for a national interest waiver, sometimes it can be worth it to retain an immigration lawyer who handles EB-2 NIW petitions on a regular basis. 

Letters of recommendation are commonly used as evidence that a foreign national should receive a national interest waiver to live and work in the United States. If you are seeking an EB-2 NIW you will likely need three to five letters of recommendation from employers, professors, colleagues, and others whom you have impressed during your career. 

Because your potential recommenders are often as busy as you are, they may ask you to draft the letter yourself and provide it to them for signature and letterhead. But that then leaves you with the dilemma of how to write an EB2 NIW letter of recommendation, and you will likely look for sample LORs.  

How to Begin an EB-2 NIW Letter of Recommendation 
Since most foreign nationals provide USCIS with more than one letter of recommendation, each of the salutations on the EB-2 NIW LORs can vary, so that each of the 3-5 endorsements look different from each other. Some sample ways to begin a national interest waiver letter of recommendation include the following: 

• Dear USCIS Officer, 
• To USCIS/DHS: 
• To Whom It May Concern: 
• Dear Adjudicating Officer, 
• To United States Citizenship and Naturalization Service: 

The first paragraph of the EB-2 NIW letter of recommendation should then state what the LOR is about, such as, “I am writing to you to recommend Ms. Jane Smith for a national interest waiver. She is well-known and highly respected in our industry.” 

The second paragraph should be about the recommender 
The second paragraph of an EB-2 NIW letter of recommendation will differ depending on the type of recommender. It should state the person’s name, their title, and a bit about their education. For an executive recommender, the second paragraph of a national interest waiver LOR may describe their career or any specific accomplishments that they have such as awards. An academic recommender’s letter of recommendation might list examples of notable published research or patents. 

Although some sample NIW letters of recommendation may spend several pages on the kudos garnered by the recommender, spending too much time on these accomplishments can distract attention from the green card beneficiary. Although some discussion of the recommender’s education and awards can lend some credibility to the letter and show that this person’s opinion about you should carry some weight, ideally no more than two paragraphs about the recommender are likely necessary. 

What are the EB2 NIW beneficiary’s, talents and qualifications? 
After a few paragraphs about the signer of the NIW letter of recommendation, there can be a few sentences about how that person knows the EB-2 beneficiary. For example, they might be a work supervisor, a thesis advisor, or heard the EB2 NIW seeker speak at a conference.  

Next would be several paragraphs on how the foreign national stands out from among their peers because they have specialties in the areas of X, Y, and Z. Mentions of a sampling of specific awards, memberships, published research, and citations, might also be appropriate items to include in this section of the EB-2 NIW letter of recommendation. 

Substantial Merit and National Importance 
Then it might be prudent to include a section on how the EB2 NIW beneficiary's work has substantial merit and national importance. Going on whitehouse.gov and congress.gov are excellent websites to find examples of national importance. 

The information about substantial merit and national importance should read a natural, rather than quoted from the website. That way this section of the letter seems like more of a recommendation than a research paper.  

Write a closing for the letter 
The ending on an EB-2 national interest waiver letter of recommendation can be like any sample LOR. It can restate a vehement endorsement of the foreign national for a national interest waiver.  

Finally, it can tell USCIS that they can feel free to contact the recommenders should any other information be needed or if there are questions. The signer of the letter should include their title and contact information. 



​Photo by Element5 Digital from Pexels

The EB2 National Interest Waiver, as you might know, has three requirements which derive from Matter of Dhanasar. Many NIW seekers are highly familiar with the substantial merit, national importance, and well positioned criteria, but somehow the third prong of Dhanasar gets glossed over in their petition letter. ​

The third requirement listed is Dhanasar is that would be beneficial to the United States to waive the requirements of a job offer, and thus a labor certification. It would be to your credit to show USCIS that you meet this criterion as well when you apply for an EB2 NIW green card. 
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Job offer/labor certification is impractical 
The first portion of establishing that the USA should waive the job offer and labor certification requirement can discuss its impracticality as it applies to the NIW seeker’s career. For example, a researcher might conduct research in more than one lab, depending on where grants are available for funding. 

Additionally, someone who has a unique specialization that would not be clearly described in a labor certification can use this section of the petition letter to tell that fact to USCIS. Also, a foreign national who is an entrepreneur can point out in their petition letter that they are employing themselves and will be creating jobs in the United States. 

Benefit the USA despite the availability of other qualified American workers 
Although it might be arguable that there is a shortage of American workers in many fields, an EB-2 NIW self-petitioner can proceed with caution and include an argument that even if there were other qualified U.S. workers available, it would still benefit the USA to grant the national interest waiver. 

One way to show that a foreign national will benefit the United States despite the availability of American workers is to cited statistics on the projected growth of the career. Searching for numbers in the Bureau of Labor Statistics Occupational Outlook Handbook at bls.gov/ooh is a marvelous way to establish potential future labor shortages in the coming decade. 

Sufficiently urgent to warrant a waiver of the labor certification  
Restating the national importance of the proposed endeavor in the United States can be a great way to establish the urgency of granting an EB-2 national interest waiver. Websites like whitehouse.gov and congress.gov may provide excellent examples of what is currently being discussed on the floor of Congress.  

There could be an executive order that reflects the urgency of the endeavors, or perhaps President Biden mentioned the work in a speech. It may be prudent to discuss these facts in this part of the petition letter, even if it was listed in the section on substantial merit and national importance. 

Talk to an immigration attorney with EB-2 NIW experience 
Immigration lawyers who focus on green cards for highly skilled professionals may be able to provide you with valuable information on how you can achieve an EB-2 NIW. A capable NIW attorney in your area, or who is available remotely, may have prior clients in your field that have been successful in showing USCIS that they meet the Dhanasar criteria. 

By discussing your qualifications with an EB2 NIW lawyer, you can also learn more about national interest waiver processing times and filing fees. 

Attorney fees for a national interest waiver green card can be pricey. Even when you are self-petitioning for an EB-2 NIW yourself, you are still faced with the $700 Form I-140 filing fee for USCIS. 

Lucky for you, there are some things that you can do to prepare for your NIW petition that are free or low-cost. For example, you might be able to show that you are well positioned through memberships without spending too much money. 

Well positioned through memberships 
Whether a foreign national is applying for the EB2 NIW or the EB1A extraordinary ability green card, one of the categories that can be established fairly easily is memberships.  

Becoming a member of a professional organization, or more than one, might be an excellent way to show a broad network of colleagues in the United States. Of course, the topic of this article is to discuss how to do so without spending too much money. When professional organization dues are less expensive, an EB2 NIW candidate may be more apt to join more than one organization. 

OK, Google 
Searching for what professional organization is appropriate for one’s career may involve some internet browsing. Tying “free membership professional organizations” in the search bar can lead to websites like Job Stars can lead to lists of professional memberships by career category.  

Finding low-cost organizations to join that have the word “National” or “American” in their name can be a bonus. This can be one method to show that one is well positioned in the United States in an obvious manner. 

There is another step...
National interest waiver seekers should not forget to search for the bylaws and include them with your petition. Along with the membership card or the “welcome to the group email,” an EB-2 NIW candidate can also attached bylaws of the professional organization to their green card petition as supporting evidence.  

Locating the membership requirements, ethical standards, and grounds for disqualification in the bylaws of the professional group can help to establish that they require outstanding achievements of their members. 

Communicate with your EB2 NIW Lawyer 
Whether you are working with a national interest waiver attorney near you, or one whom you have retained through a remote law firm, it can be wise to communicate your current memberships with professional organizations, so that they can be used as evidence for your green card petition. 

Your EB-2 NIW lawyer may be willing to brainstorm with you about some memberships in your industry that might be appropriate for your green card case.  
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It can feel incredibly frustrating to have filed your EB-2 NIW green card petition and waited the sometimes 18 months of processing time, only to receive a request for more evidence (RFE) or a Notice of Intent to Deny (NOID). Worse still is when you are diligent in responding to the RFE or NOID, and then you get denied by USCIS.

As with most failures; however, you can learn something from the green card denial. Either you can use the information gathered from USCIS to refile your case, or you can hire a new or different lawyer to do it for you.

Learning from an RFE 
Since  premium processing on the EB-2 NIW green card petition is only available to a limited number of cases, you may not receive your RFE from USCIS until after about 18 months of processing time. After you respond to the RFE, if you receive a denial of your green card petition, you can still use the RFE letter as a bit of a “cheat sheet.”

Now you know what USCIS said was lacking in your original petition and the examples of evidence that you might provide to make the EB-2 NIW case approvable. So when you refile you can combine all of the evidence from both the original NIW petition and the RFE response.

Speak Their Language
Another goldmine that can be excavated from an RFE letter from USCIS is specific language. If USCIS cites a specific court holding or statute when stating that your EB-2 NIW is deficient, you can use that same language in your petition letter when you refile.

For example, here is a sample paragraph from an actual EB2 NIW green card RFE letter:
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“Please submit evidence to establish that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. This balance was described in Dhanasar as on one hand protecting the domestic labor supply through the creation of the labor certification process, while on the other hand recognizing that in certain cases the benefits inherent in the labor certification process can be outweighed by other factors that are also deemed to be in the national interest. USCIS may evaluate factors including, but not limited to, the following:

• Whether, in light of the nature of the beneficiary's qualifications or proposed endeavor, it would be impractical either for the beneficiary to secure a job offer or for the petitioner to obtain a labor certification;
• Whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the beneficiary's contributions;
• Whether the national interest in the beneficiary's contributions is sufficiently urgent to warrant forgoing the labor certification process;
• Whether the beneficiary's endeavor may lead to potential creation of jobs; and
• Whether the beneficiary is self-employed in a manner that generally does not adversely affect U.S. workers.”

Therefore, since USCIS gave you a “gift” in the form of bullet points, you can have headings in your refiled EB-2 NIW petition letter based on each of the five factors above that apply to you. 

Asking an Immigration Attorney to Refile Your EB2 NIW Case
If you filed the first case on your own, you might consider consulting with an immigration attorney on your second EB-2 NIW green card filing. Often it is more difficult for an immigration lawyer to save your case by responding to your RFE than it is for her to rework and refile the NIW case. 



Photo by Daria Sannikova from Pexels

If you are considering coming to the United States as a student, you may be still in the planning phase and feel confused about the alphabet of visas offered by the Department of Homeland Security (DHS). Unfortunately, the names of the visas do not correspond with the first letter of their purpose, in most cases.

This article will discuss the following to help you to plan your stay in the United States:

1. What is the difference between an F-1 visa and an M-1 visa?
2. Can you bring your spouse and kids with you as a university or vocational student?
3. Can you go to school in the United States while on a B1/B2 visa?
4. Is it possible to adjust your status from an F or M visa to a green card?​

​F visa vs. M visa
An F student visa covers a variety of educational categories. The U.S. Department of State lists the following:

• University or college
• High School
• Seminary
• Conservatory
• Private elementary school
• Other academic institution, including a language training program

Alternatively, an M visa is reserved for technical, vocational training, or another recognized nonacademic program, other than language training.

F and M visas for spouses and children
Foreign nationals who are approved for an F or an M visa to the United States may be able to bring their marital partner and their unmarried minor children with them. These dependents would be issued an F-2 or an M-2 visa.

The children would be able to attend school while they are in the United States residing with their parents. Each dependent would be issued a Form I-20 by the main beneficiary’s education institution, so that they can apply for their visas.

Student Visa vs. Visitor Visa
Some may believe that they can circumvent the whole Form I-20 process by just arriving in the USA on a visitor visa and enrolling in school. Unfortunately, this will not work.

B1/B2 visitor visa holders are not authorized to go to school or work in the United States. Although a new student visa can be issued up to 120 days before the school program starts, an F or M visa holder may not enter the United States more than 30 days before the start of the instructional program. Alternatively, continuing F or M visa students may enter the United States at any time prior to the start of their program, so long as they are currently enrolled in an SEVP-approved program and in SEVIS.

Can you go from an F-1 or M-1 visa to a green card?
Although the intention for F-1 or M-1 students should be to depart the United States upon completion of their program, some may have the opportunity to remain in the USA. Many students do practical training, such as CPT, OPT, and/or STEM-OPT as part of their studies. This may lead to a dual intent H-1B visa through a sponsoring employer. 
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Those who are getting a master’s degree or a Ph.D. may want to consider applying for an EB-2 National Interest Waiver (NIW). 

When you are living and studying in the United States on an F-1 student visa, your wallet can empty out quickly. Out-of-state tuition, books, and housing add up, and your on-campus employment may not be much of a help.

Fortunately, the United States Citizenship and Immigration Service (USCIS) considers special situations that may warrant the granting of an Employment Authorization Document (EAD) to an F-1 visa student. Of course, this is done per their discretion, rather than a guarantee.

What does USCIS consider a special situation?
USCIS realizes that natural catastrophes and other extreme occurrences can affect one’s immigration needs. In such situations, CIS can consider certain requests on a case-by-case basis.

Some of the entreaties that USCIS will evaluate include those for delayed extensions or changes of status; fee waivers; and employment authorizations for F-1 visa students. This article will focus on the third type of request. 

Severe Economic Hardship to F-1 Students
Caused by Unforeseen Circumstances
If an F-1 visa student experiences severe economic hardship because of unexpected circumstances that are out of their personal control, they can request an EAD card so that they can work off-campus and make more money. Some examples of unforeseen circumstances that USCIS considers include the following:

• Loss of financial aid or on-campus employment (through no fault of your own);
• Substantial fluctuations in currency value or exchange rate;
• Inordinate increases in tuition or living costs;
• Unexpected changes in the financial condition of your source of support;
• Medical bills; and
• Other substantial and unexpected expenses.

Notably; however, the off-campus employment is still subject to certain regulatory requirements.

How an F-1 Student Can Apply for An EAD Card
An F-1 visa student who believes that they have a qualifying unforeseen circumstance can apply for an EAD card by filing Form I-765 with accompanying evidence of the hardship. Additionally, the Designated School Official (DSO) will need to complete the employment page on their Form I-20. This will show that they are eligible for off-campus employment due to severe economic hardship caused by unforeseen circumstances beyond their control.

An approved EAD card for an F-1 student is valid in one-year intervals until the expected date of graduation so long as the need for off-campus employment still exists. 

Applying for Special Student Relief
Certain F-1 visa holders can also apply for special student relief that can allow them to receive an EAD card. Examples of students who might qualify for special relief include the following:

• Are the citizen of a country specified in a Federal Register notice;
• Have been lawfully present in the United States for the period indicated in the Federal Register notice;
• Have reported on time to your Designated School Official and been enrolled in a Student and Exchange Visitor Program-certified school since the special situation;
• Are currently maintaining F-1 status; and
• Experiencing severe economic hardship.

Students on an F-1 visa who believe that they might qualify for special relief should submit Form I-765 and their Form I-20 to USCIS with compelling evidence of their needs.

Ask an immigration attorney near you
If you are not sure whether your case might be considered by USCIS to be a special situation, or if you need help with presenting a compelling request to the immigration service, you might consider talking it over with an immigration lawyer near you.  You can also join our Facebook group, “OPT to EB-2 NIW.” 
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Photo by Pavel Danilyuk from Pexels