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.”
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.
At Gallagher Domanski, we draft one free letter of recommendation for your colleague to sign, and we also provide plenty of sample LORs. Both items are included in the flat-fee price of the EB-2 NIW petition.
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.
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.
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. If you are interested in finding out if the national interest waiver might be a strong immigration option for you, you might consider taking our quiz or contacting us directly.
Since there is currently no option for premium processing of an EB-2 national interest waiver petition, and there is an immigration backlog at USCIS service centers, by the time you adjust your status to a green card, your once little kids could now be preteens.
Therefore, if your child was in early elementary school when you filed your Form I-140, and then it took 2 ½ years to get your EB-2 NIW petition approved, adjust status, and then receive your green cards for you and your family, there may soon be a need to replace the green card for one or more of your offspring. Fortunately, replacing a green card is fairly simple, and it begins with Form I-90.
What is a Form I-90?
An I-90 form is called an Application to Renew or Replace Permanent Resident Card. According to USCIS, some of the reasons for replacing a green card that might be applicable to an I-140 beneficiary or derivative child include:
Replacing a Green Card after Age 14
Young lawful permanent residents must replace their green card after they turn 14, unless their green card expires before they will turn 16. That means the child of an approved EB2 NIW recipient who adjusts their status at a young age might need to replace their green card when they reach high school.
Generally, the I-90 can be submitted to USCIS online after creating an account or by mail, FedEx, DHL, or UPS to the Phoenix Service Center. However, green card holders who are applying for a waiver of the filing fee are not permitted to file the I-90 online.
Avoiding fraud by making sure a communication came from USCIS
Some fraudulent actors have been known to send fake emails to green card holders to invite them to renew or replace their permanent resident card via a Form I-90. Although the USCIS does sometimes contact persons with LPR status via email or text, it is important to check the communication to make sure it is authentic.
Emails and texts from the USCIS about the Form I-90 should include links ending in .gov that take you directly to the USCIS website. Otherwise, the message may be an immigration scam.
Ask your EB-2 NIW Attorney
Most EB-2 NIW green card attorneys keep an eye on the ages of the children of their approved clients who adjust status and receive green cards. However, when a child nears the age of 14, it is prudent to contact the immigration lawyer about replacing their green card if necessary.
The other option is to create a USCIS account and complete Form I-90 for your teenager yourself. If you are not sure about whether filing to replace the green card applies to your family, you can contact the EB2 NIW lawyer who filed your case with USCIS.
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:
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.
Some EB2 NIW lawyers might draft a sample LOR
At Gallagher Domanski we offer our clients one free letter of recommendation. If you retain us to represent you for your national interest waiver petition, we will draft one letter of recommendation for you for free.
We will ask you for the name of the recommender and a link to an online profile for them, such as their LinkedIn profile. Contact us if you would like a free CV evaluation for your EB-2 NIW petition.
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.
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 EB-2 NIW candidate may be more apt to join more than one organization.
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.
With the current USCIS backlog the way that it has been since 2020, you might be wondering what the processing time will be for your EB-2 National Interest Waiver case. In the past the processing time for the EB-2 NIW was five to nine months, but things have changed, just as life as we know it is drastically different.
If you are a curious person, you might also ponder how the United States Citizenship and Immigration Service estimates what the case processing time will be. Although this knowledge will not likely make the processing time faster, at least you will be aware of how this estimate is determined.
History of USCIS Case Processing Time Estimation
USCIS has changed the way that they calculate average case handling timelines for some types of cases, including the EB2 NIW.
The Old Way
From 2009 through 2017, USCIS would use the “cycle time” method for all cases. They would take into account the entire group of receipt and pending case counts.
The way that USCIS explains it is that “Cycle time is the number of previous months of receipts it takes to equal the current month’s pending receipt volume.” They still use the cycle time method for determining average case processing times for some types of cases and forms, including the following:
The Updated Way
For purposes of the EB-2 NIW and subsequent adjustment of status, national interest waiver beneficiaries should be aware that in 2018 USCIS started using the “processing time” methodology.
For the Form I-140 that is mailed to USCIS with the EB2 NIW petition letter, as well as the I-485 (adjustment of status) and I-765 (work authorization/EAD), case processing times are calculated using the new method. That means that in a concurrent filing for an EB-2 NIW, only the Form I-131 for a travel document would be subject to the “cycle time” methodology for computing the processing time.
How is the EB-2 NIW case processing time calculated?
When it comes to estimating the processing time for the national interest waiver, the EB-2 NIW is subject to the “processing time” methodology. This method for calculating NIW processing time tends to be more precise as it uses more recent data to determine the date range.
The service provides an estimated time range for when the case should have been processed, as well as a receipt date for which a beneficiary can submit a case inquiry if they have not received notice from USCIS. The lower number in the time range is the period that it generally takes to process 50% of the cases; whereas, the higher number is the number of months that it takes USCIS to process 93% of that type of case.
Be sure to share your current status and plans with your attorney
If you are not self-petitioning for your EB-2 NIW immigrant visa, then you are likely working with an immigration lawyer in your area or virtually. It can be prudent to share your current status with your green card attorney at the beginning of your case, as well as when your status will expire.
That way you can plan around EB-2 NIW case processing times accordingly, so that you can maintain your status in the United States. If you do not have an immigration attorney yet, or if you have questions about the national interest waiver, contact us.
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 there is no premium processing on the EB-2 NIW green card petition at this time, 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:
“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:
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.
If you would like some assistance with filing an EB-2 NIW green card immigration petition, this is the focus of Gallagher Domanski Professional Law Corporation. Jean Domanski is one of the few EB-2 NIW lawyers in the USA who has both an M.A. in Communications and is a member of MENSA. You can rest assured that your EB-2 NIW petition will be well written.
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:
F visa vs. M visa
An F student visa covers a variety of educational categories. The U.S. Department of State lists the following:
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.
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). Although the EB2 NIW processing time can be long because the NIW does not have premium processing right now, it might be worth the wait. You may contact Gallagher Domanski Professional Law Corporation for a free CV evaluation.
If you are in one of the second preference employment-based green card categories where you still have a long wait, you might be wondering if you can downgrade from your approved EB-2 to an EB-3. That prospect might be a possibility, so long as your EB-2 is not based on a national interest waiver.
Many green card beneficiaries think that if they are approved for a higher-level employment based category, they can automatically downgrade if that works better for them regarding their priority date and its standing in the visa bulletin. However, it is a bit more complicated than that.
What is a green card downgrade?
Employment-based green cards fall into several categories. For example, the EB-1A extraordinary ability green card is a first preference immigrant visa. The EB-2, as well as the EB-2 NIW national interest waiver, fall into second preference.
An EB-3 is a third preference green card that can have an later current priority date on the visa bulletin. When there is a later date on the visa bulletin for the EB-3 than the EB-2, some foreign national workers will be able to downgrade from second preference to third preference. But this strategy will not work for the EB-2 NIW green card.
Why you cannot downgrade from an EB-2 NIW to an EB-3
When you request an EB-2 green card with a national interest waiver, you are asking the United States Citizenship and Immigration Service (USCIS) to waive the job offer and labor certification requirement (PERM). If you succeed and are offered an EB-2 NIW green card, after what can be a lengthy processing time, then you would not likely have the job offer and labor certification that is required for the EB-3 permanent residency.
Therefore, persons from countries that do not have a current date on the visa bulletin for the EB-2 NIW sometimes prefer to try for an EB-1A extraordinary ability green card instead. Of course, this first preference immigrant visa has more stringent requirements.
Discuss your case with an employment-based green card lawyer
Some immigration attorneys focus their work on employment-based green cards and are willing to consult with you about your options.
If you are considering an EB-1, EB-2, or other petition for lawful permanent residency, why not get in touch with a green card lawyer near you?
Photo by Robin Schreiner from Pexels